addenda - tyler texas water/eng… · web viewcity of tyler, texas. tyler water utilities (twu)...

Contract Copies:

☐ City Clerk Copy

☐ City Copy # 2

☐ Contractor Copy # 1

☐ Contractor Copy # 2

☐ Project Designer Copy

☐ Owner / Developer Copy

City of Tyler, Texas

Tyler Water Utilities (TWU)3-Way Contract

CONTRACT DOCUMENTSFOR

(TWU) Contract Number Enter TWU contract number hereProject Name Enter project name here

CITY OFFICIALS: PREPARED BY:Mayor Martin Heines Owner Enter name of Owner

hereCity CouncilDistrict 1: Central Linda SellersDistrict 2: West Darryl BowdreDistrict 3: Northwest Ed MooreDistrict 4: Northeast Don Warren Project Designer Enter name of Design

Engineer hereDistrict 5: East Bob WestbrookDistrict 6: South John Nix

City Manager Edward Broussard

Interim Director of Utilities

Gordon Mayer, P.E.

CITY OF TYLER, TEXAS – 3-WAY CONTRACT REVISION DATE: 06.05.2017

TABLE OF CONTENTS

SECTION 1 ADDENDA........................................................................................................................................7

SECTION 2 NOTICE TO BIDDERS..................................................................................................................8

SECTION 3 INSTRUCTIONS TO BIDDERS....................................................................................................9

SECTION 4 POLICY STATEMENT ON EEO................................................................................................17

SECTION 5 PROPOSAL....................................................................................................................................18

SECTION 6 BID BOND......................................................................................................................................19

SECTION 7 STANDARD FORM OF AGREEMENT....................................................................................22

SECTION 8 PERFORMANCE AND MAINTENANCE BOND AND PAYMENT BOND.........................30

SECTION 9 PAYMENT BOND ONLY............................................................................................................33

SECTION 10 CERTIFICATE(S) OF INSURANCE..........................................................................................36

SECTION 11 ENDORSEMENTS........................................................................................................................39

SECTION 12 CONTRACTOR’S AFFIDAVIT OF BILLS PAID....................................................................40

SECTION 13 OWNER’S AFFIDAVIT OF BILLS PAID.................................................................................41

SECTION 14 WAIVER AND RELEASE...........................................................................................................42

SECTION 15 PROPERTY OWNER’S ACKNOWLEDGEMENT OF DEVELOPMENT...........................44

SECTION 16 GENERAL CONDITIONS...........................................................................................................45

SECTION 17 SPECIAL CONDITIONS..............................................................................................................83

SECTION 18 TECHNICAL AND/OR SPECIAL SPECIFICATIONS; PLANS AND OTHER DRAWINGS; OTHER DOCUMENTS AS NEEDED............................................................................................84

SECTION 19 CERTIFICATE OF INTERESTED PARTIES..........................................................................85

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DETAILED TABLE OF CONTENTS

SECTION 1 ADDENDA........................................................................................................................................7

SECTION 2 NOTICE TO BIDDERS..................................................................................................................8

SECTION 3 INSTRUCTIONS TO BIDDERS....................................................................................................9

3.1 PROPOSAL FORM...............................................................................................................................................93.2 EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF THE WORK..............................................................93.3 PRE-BID CONFERENCE......................................................................................................................................93.4 ADDENDA..........................................................................................................................................................93.5 QUANTITIES IN PROPOSAL FORM....................................................................................................................103.6 UNIT PRICES....................................................................................................................................................103.7 PROJECT COMPLETION TIME...........................................................................................................................103.8 ASSIGNMENT AND SUBCONTRACTING............................................................................................................103.9 OUT-OF-STATE CONTRACTORS......................................................................................................................113.10 NON-DISCRIMINATORY EMPLOYMENT......................................................................................................113.11 WAGE RATES.............................................................................................................................................113.12 PROPOSAL GUARANTY (BID BOND)...........................................................................................................113.13 PREPARATION OF PROPOSAL......................................................................................................................123.14 SIGNATURE REQUIREMENTS OF PROPOSAL................................................................................................133.15 FILING OF BID PACKAGES.........................................................................................................................133.16 WITHDRAWING OR MODIFYING BID PACKAGES........................................................................................133.17 OPENING BID PACKAGES...........................................................................................................................143.18 IRREGULAR PROPOSALS.............................................................................................................................143.19 DISQUALIFICATION OF BIDDERS................................................................................................................143.20 CONSIDERATION OF PROPOSALS................................................................................................................143.21 CITY MAY REJECT BID PACKAGES............................................................................................................143.22 AWARD OF CONTRACT...............................................................................................................................143.23 RETURN OF BIDDER’S BOND.....................................................................................................................153.24 SUBMISSION OF POST BID INFORMATION..................................................................................................153.25 CONTRACT BONDS.....................................................................................................................................153.26 INSURANCE.................................................................................................................................................163.27 EXECUTION OF CONTRACT........................................................................................................................163.28 FAILURE TO EXECUTE CONTRACT.............................................................................................................163.29 BEGINNING OF WORK................................................................................................................................16

SECTION 4 POLICY STATEMENT ON EEO................................................................................................17

SECTION 5 PROPOSAL....................................................................................................................................18

SECTION 6 BID BOND......................................................................................................................................19

SECTION 7 STANDARD FORM OF AGREEMENT....................................................................................22

7.1 DESCRIPTION OF WORK..................................................................................................................................227.2 CONTRACT DOCUMENTS.................................................................................................................................227.3 TIME OF COMMENCEMENT AND COMPLETION................................................................................................237.4 CONTRACT PRICE............................................................................................................................................247.5 BONDS.............................................................................................................................................................247.6 INSURANCE......................................................................................................................................................247.7 CITY AND OTHERS INDEMNIFIED....................................................................................................................257.8 VENUE.............................................................................................................................................................257.9 AFFIDAVIT OF BILLS PAID AND FINAL PAYMENT TO CONTRACTOR..............................................................257.10 FINAL ACCEPTANCE – PROPERTY OF CITY OF TYLER...............................................................................267.11 NOTICES.....................................................................................................................................................26

SECTION 8 PERFORMANCE AND MAINTENANCE BOND AND PAYMENT BOND.........................30

SECTION 9 PAYMENT BOND ONLY............................................................................................................33

SECTION 10 CERTIFICATE(S) OF INSURANCE..........................................................................................36

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SECTION 11 ENDORSEMENTS........................................................................................................................39

SECTION 12 CONTRACTOR’S AFFIDAVIT OF BILLS PAID....................................................................40

SECTION 13 OWNER’S AFFIDAVIT OF BILLS PAID.................................................................................41

SECTION 14 WAIVER AND RELEASE...........................................................................................................42

SECTION 15 PROPERTY OWNER’S ACKNOWLEDGEMENT OF DEVELOPMENT...........................44

SECTION 16 GENERAL CONDITIONS...........................................................................................................45

16.1 DEFINITIONS OF TERMS......................................................................................................................4516.1.1 Addenda...........................................................................................................................................4516.1.2 Agreement........................................................................................................................................4516.1.3 Calendar Day...................................................................................................................................4516.1.4 Change Order..................................................................................................................................4516.1.5 City...................................................................................................................................................4516.1.6 Contract Documents........................................................................................................................4516.1.7 Contract Price.................................................................................................................................4516.1.8 Contract Time..................................................................................................................................4516.1.9 Contractor........................................................................................................................................4516.1.10 Extra Work.......................................................................................................................................4516.1.11 Field Order......................................................................................................................................4616.1.12 Final Completion (a.k.a. Complete in Full or Completed in Full)..................................................4616.1.13 Notice to Proceed............................................................................................................................4616.1.14 Owner..............................................................................................................................................4616.1.15 Ozone Action Day............................................................................................................................4616.1.16 Proposal...........................................................................................................................................4616.1.17 Project Designer..............................................................................................................................4616.1.18 Project Representative.....................................................................................................................4616.1.19 Rain Day..........................................................................................................................................4616.1.20 Standard Specifications...................................................................................................................4616.1.21 Sub-Contractor................................................................................................................................4716.1.22 Substantial Completion....................................................................................................................4716.1.23 Supplier............................................................................................................................................4716.1.24 Traffic Engineer...............................................................................................................................4716.1.25 Work.................................................................................................................................................4716.1.26 Working Day....................................................................................................................................4716.1.27 Working Hours.................................................................................................................................4716.1.28 Written Notice..................................................................................................................................48

16.2 RESPONSIBILITIES OF THE OWNER..................................................................................................4816.2.1 Collateral Contracts........................................................................................................................4816.2.2 Easements and Right-of-Way...........................................................................................................48

16.3 RESPONSIBILITIES OF THE CONTRACTOR.....................................................................................4816.3.1 Contractor's Understanding............................................................................................................4816.3.2 Keeping Plans and Specifications Accessible..................................................................................4816.3.3 Right of Entry...................................................................................................................................4816.3.4 Contractor's Duty and Superintendence..........................................................................................4816.3.5 Character of Workers......................................................................................................................4916.3.6 Assignment and Subcontracting......................................................................................................5016.3.7 Subsurface Conditions.....................................................................................................................5016.3.8 Protection of Materials, Equipment and Work................................................................................5016.3.9 Protection Against Accident to Employees and the Public.............................................................5016.3.10 Shop Drawings and Other Submittals.............................................................................................5016.3.11 Water for Construction....................................................................................................................5116.3.12 Contractor's Buildings.....................................................................................................................5116.3.13 Sanitation.........................................................................................................................................5116.3.14 Protection Against Claims...............................................................................................................5116.3.15 Intellectual Property - Payment of Royalties and License Fees......................................................5216.3.16 Compliance with Laws and Ordinances..........................................................................................5216.3.17 OSHA Requirements........................................................................................................................5216.3.18 Trench Safety Systems......................................................................................................................53

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16.4 RESPONSIBILITIES OF THE PROJECT DESIGNER...........................................................................5316.4.1 Project Designer-Owner-City Relationship....................................................................................5316.4.2 Lines and Grades.............................................................................................................................5416.4.3 Initial Determinations......................................................................................................................5416.4.4 Payments for Work..........................................................................................................................5416.4.5 Objections........................................................................................................................................54

16.5 RESPONSIBILITIES OF THE PROJECT REPRESENTATIVE............................................................5416.5.1 Project Representative-Owner-City Relationship...........................................................................5416.5.2 Professional Inspection by Project Representative.........................................................................55

16.6 CONTRACT DOCUMENTS....................................................................................................................5616.6.1 Ownership of Drawings...................................................................................................................5616.6.2 Adequacy of Design.........................................................................................................................5616.6.3 Specifications...................................................................................................................................5616.6.4 Discrepancies and Omissions..........................................................................................................56

16.7 BONDS......................................................................................................................................................5716.7.1 General............................................................................................................................................5716.7.2 Performance Bond...........................................................................................................................5716.7.3 Maintenance Bond...........................................................................................................................5716.7.4 Payment Bond..................................................................................................................................57

16.8 INSURANCE REQUIRED...............................................................................................................................5816.8.1 Contractor Shall Maintain Insurance..............................................................................................5816.8.2 Insurance Requirements shall not limit Contractor’s Liabilities and Obligations.........................5816.8.3 Commercial General Liability.........................................................................................................5816.8.4 Business Automobile Liability.........................................................................................................5816.8.5 Contractor’s Professional Errors & Omissions Liability...............................................................5916.8.6 Inland Marine Builder’s Risk Insurance.........................................................................................5916.8.7 Contractor’s Pollution Liability......................................................................................................6016.8.8 Commercial Umbrella/Excess Liability...........................................................................................6016.8.9 Additional Insured Endorsements....................................................................................................6016.8.10 Deductibles, Coinsurance Penalties & Self-Insured Retention.......................................................6116.8.11 Waiver of Subrogation.....................................................................................................................6116.8.12 Right to Revise or Reject..................................................................................................................6116.8.13 No Representation of Coverage Adequacy......................................................................................6216.8.14 Certificate of Insurance...................................................................................................................6216.8.15 Workers’ Compensation & Employer’s Liability............................................................................62

16.9 QUALITY OF MATERIALS AND WORKMANSHIP...........................................................................6616.9.1 Materials Approved for Work..........................................................................................................6616.9.2 Testing of Materials.........................................................................................................................6716.9.3 Defects and Their Remedies............................................................................................................6716.9.4 Guarantee........................................................................................................................................68

16.10 MAINTENANCE OF SITE......................................................................................................................6816.10.1 Protection of Adjoining Property....................................................................................................6816.10.2 Driveways and Property Access......................................................................................................6916.10.3 Traffic Control.................................................................................................................................6916.10.4 Erosion Control Plan.......................................................................................................................7016.10.5 Protection of Survey Monuments.....................................................................................................7016.10.6 Manhole, Clean-Out, and Water Valve Locations...........................................................................7016.10.7 Water Sprinklers..............................................................................................................................7016.10.8 Existing Mailboxes...........................................................................................................................71

16.11 GENERAL PROVISIONS........................................................................................................................7116.11.1 Damages..........................................................................................................................................7116.11.2 Losses From Natural Causes...........................................................................................................7116.11.3 Public Utilities.................................................................................................................................7116.11.4 Ozone Action Day............................................................................................................................71

16.12 PROSECUTION AND PROGRESS.........................................................................................................7216.12.1 Time and Order of Completion........................................................................................................7216.12.2 Computation of Contract Time for Completion...............................................................................7216.12.3 Liquidated Damages........................................................................................................................7216.12.4 Extension of Time............................................................................................................................7316.12.5 Inclement Weather...........................................................................................................................73

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16.12.6 Hindrances and Delays....................................................................................................................7416.13 MEASUREMENT AND PAYMENT.......................................................................................................74

16.13.1 Quantities and Measurements.........................................................................................................7416.13.2 Estimated Quantities........................................................................................................................7416.13.3 Price of Work...................................................................................................................................7516.13.4 Arrears.............................................................................................................................................7516.13.5 Payments Withheld..........................................................................................................................7516.13.6 Partial Payments.............................................................................................................................7616.13.7 Records of Materials Purchased.....................................................................................................7616.13.8 Use of Completed Portions..............................................................................................................7616.13.9 Substantial Completion....................................................................................................................7716.13.10 Final Completion and Acceptance...................................................................................................7716.13.11 Final Payment..................................................................................................................................78

16.14 EXTRA WORK AND CLAIMS...............................................................................................................7816.14.1 Changes and Alterations..................................................................................................................7816.14.2 Change Orders.................................................................................................................................7816.14.3 Minor Changes................................................................................................................................7916.14.4 Extra Work.......................................................................................................................................7916.14.5 Time of Filing Claims......................................................................................................................80

16.15 ABANDONMENT OF CONTRACT.......................................................................................................8016.15.1 Abandonment by Contractor............................................................................................................80

SECTION 17 SPECIAL CONDITIONS..............................................................................................................83

SECTION 18 TECHNICAL AND/OR SPECIAL SPECIFICATIONS; PLANS AND OTHER DRAWINGS; OTHER DOCUMENTS AS NEEDED............................................................................................84

SECTION 19 CERTIFICATE OF INTERESTED PARTIES..........................................................................85

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Section 1 ADDENDA

[Insert Addenda Here As Applicable]

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Section 2 NOTICE TO BIDDERSCheck Here if this Section is NOT Used ☐

[Insert Notice to Bidders Here As Applicable]

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Section 3 INSTRUCTIONS TO BIDDERSCheck Here if this Section is NOT Used ☐

3.1 PROPOSAL FORMThe Project Designer will furnish bidders with proposal forms which state the general location and description of the contemplated Work, an approximate estimate of the materials to be furnished and/or Work to be done and upon which bid prices are asked, and the time in which the Work is to be completed. The Proposal form will provide a space for entering the amount of proposal guaranty.

3.2 EXAMINATION OF PLANS, SPECIFICATIONS AND SITE OF THE WORKBidders are advised that the plans, specifications, and other documents on file will constitute all the information furnished. Bidders are required, prior to submitting any bid package, to read the specifications, Proposal, contract and bond forms carefully, to visit the site of the Work, to examine carefully local conditions, to inform themselves by their independent research, tests, and investigations of the difficulties to be encountered and assess for themselves the accessibility of the Work and all attending circumstances affecting the cost of doing the Work and time required for its completion, and obtain all information required to make an intelligent bid. No information given other than that shown on plans and contained in the specifications, Proposal and other documents, will be binding upon the OWNER. Bidders must rely exclusively upon their own estimates, investigations, tests, and other data which are necessary for full and complete information upon which the bid may be based. It is mutually agreed that submission of a bid package is evidence that the bidder has made the examinations, investigations, and tests required herein. Should a bidder find discrepancies in, or omissions from the plans, specifications or other documents, or be in doubt as to their meaning, the bidder should notify the Project Designer immediately and obtain a clarification prior to submitting any bid package. Claims for additional compensation due to variations between conditions actually encountered in construction and as indicated by the plans will not be allowed.

3.3 PRE-BID CONFERENCEIf a Pre-Bid Conference is scheduled, it will be set a minimum of four (4) working days prior to the bid opening time. If attendance at the Pre-Bid Conference is mandatory due to the size or nature of the project, bidders must attend to ensure their understanding of the project scope as well as the CITY’S bidding and contracting requirements; a bidder’s absence from a mandatory Pre-Bid Conference shall result in disqualification from bidding.

3.4 ADDENDAShould a bidder find discrepancies in, or omissions from the plans or specifications or other contract documents, or should he be in doubt as to their meaning, he should at once notify the Project Designer in order that a written addendum may be sent to all bidders. Bidders desiring further information or interpretations must make request for such information to the Project Designer prior to four (4) working days before the time of the bid opening. The person submitting the request will be responsible for its prompt delivery. Appropriate clarification and addenda will be issued at least forty-eight (48) hours prior to the time of the bid opening. Answers to all such requests will be given in writing to all bidders, in addendum form, and all

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addenda will be bound with and made a part of the contract documents. No other explanation or interpretation will be considered official or binding. Any addenda issued will be mailed, faxed or delivered to each person to whom a set of such documents has been furnished and receipt of same must be acknowledged by noting the addendum number and date of receipt of said addenda in the space provided on the Proposal form. The proposal, as submitted by the CONTRACTOR, will be so constructed as to include any addenda if such are issued by the Project Designer (prior to forty-eight (48) hours of the bid opening).

3.5 QUANTITIES IN PROPOSAL FORMThe quantities of the Work and materials set forth in the Proposal form or on the plans approximately represent the Work to be performed and materials to be furnished, and are for the purpose of comparing the bids on a uniform basis. Payment will be made by the OWNER to the CONTRACTOR only for the actual quantities of Work performed or materials furnished in accordance with the plans and specifications, and it is understood that the quantities may be increased or decreased as provided for in Section 16.13.2 "Estimated Quantities", without in any way invalidating the bid prices.

3.6 UNIT PRICESUnit prices written in words will be the basis for the award of the proposal. Unit prices are used by the OWNER in scheduling interim payments to the CONTRACTOR. The unit price written in words, multiplied by the estimated bid quantity, will be used to determine the item extension and the actual total bid price. All mathematical errors found when the bids are tabulated will be corrected by the OWNER, and the bids will be revised to reflect the correct item extension and/or total bid price. The corrected total bid amount will then become the official proposal for that CONTRACTOR. All bidders will be notified of any errors in their bid, and will be notified and given the opportunity to review the official bid tabulation prior to award recommendation.

The unit prices shown in the proposals must be balanced to reflect actual cost of the item, including a fair and reasonable cost for overhead and profit. If the unit price is considered to be unbalanced, the OWNER reserves the right to reject the entire proposal. If required by the OWNER, the CONTRACTOR must provide documentation to substantiate that the unit prices reflect fair and reasonable material costs, labor costs, overhead and profit, as determined by industry standards.

3.7 PROJECT COMPLETION TIMEProject completion time will be established according to the requirements of the Proposal. The amount bid for the contract will adequately represent the effort required to complete the project within the specified time on the Proposal.

3.8 ASSIGNMENT AND SUBCONTRACTINGThe CONTRACTOR will retain full control and will give personal attention to the fulfillment of this contract and will not assign by Power of Attorney or otherwise without the written consent of the OWNER and CITY.

The CONTRACTOR may utilize the services of specialty subcontractors on those parts of the Work which, under normal contracting practices, are performed by specialty subcontractors. However, the CONTRACTOR shall not employ any subcontractor against whom the CITY may have a reasonable objection.

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The CONTRACTOR must perform, with the CONTRACTOR’S own forces, at least thirty percent (30%) of the total contract, based on unit bid prices, unless this requirement is waived by the OWNER.

Subcontracting any portion or feature of the Work, or materials required in the performance of this contract, shall not relieve the CONTRACTOR from his full obligations to the CITY and OWNER, as provided by this AGREEMENT. The CONTRACTOR will be fully responsible to the CITY and OWNER for the acts and omissions of subcontractors, and of persons either directly or indirectly employed by them, as the CONTRACTOR is for the acts and omissions of persons directly employed by the CONTRACTOR.

The CONTRACTOR must cause appropriate provisions to be inserted in all subcontracts relative to the Work, to bind subcontractors to the CONTRACTOR by the terms of the contract documents, insofar as applicable to the work of the subcontractors, and to give the CONTRACTOR the same power as regards to terminating any subcontract that the OWNER may exercise over the CONTRACTOR under any provision of the contract documents.

In the event that a portion of the Work is subcontracted, the CITY and the OWNER will not recognize such subcontractors in supervision of the construction or in making monthly payments for Work accomplished. The CONTRACTOR shall be primarily responsible for all Work, and shall receive all payments. Nothing contained in this contract shall create any contractual relation between any subcontractor and the OWNER or CITY.

3.9 OUT-OF-STATE CONTRACTORSAll out-of-state CONTRACTORS are required to submit with their bid package a copy of any law from their state of residence which would give a preference to CONTRACTORS domiciled in their state over out-of-state CONTRACTORS.

3.10 NON-DISCRIMINATORY EMPLOYMENTThe City Council adopted on October 21, 1975, a Resolution requiring non-discriminatory employment by persons who contract with the CITY to supply labor, materials, goods, or services to the CITY. A copy of the latest City Manager’s Policy Statement On Equal Employment Opportunity shall be included in the contract documents and is on file in the City Clerk's Office. The CONTRACTOR and CONTRACTOR’S subcontractors or agents must not engage in any discriminatory employment practices.

3.11 WAGE RATESWage rates for the various classes of labor involved in the project shall be not less than those prevailing for each class of labor in this area. Time and one-half shall be paid all workers, whether skilled or semi-skilled, for all labor done in excess of forty (40) hours weekly. The inclusion, if any, of a schedule of minimum wage does not relieve the CONTRACTOR from responsibility to comply with any State or Federal wage law that may be applicable.

The CONTRACTOR shall deduct from all workers’ wages social security, withholding tax, and all deductions required by law and shall not make any deductions other than those required or authorized by law.

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3.12 PROPOSAL GUARANTY (BID BOND)Unless otherwise directed in the Special Conditions, bidders must submit an acceptable Cashier's or Certified Check upon a national or state bank in the amount of five percent (5%) of the total maximum bid payable without recourse to the City of Tyler, Texas, or an acceptable Bid Bond in the same amount from a reliable surety company, registered by the State Board of Insurance to conduct business in the State of Texas, and acceptable according to the most recent list of the companies holding Certificates of Authority from the Secretary of the Treasury of the United States, shown on the Treasury List, as a guarantee that the bidder will enter into a contract. The proposal guaranty must be enclosed in the same envelope containing the bid package. Bid packages without the required enclosed check or Bid Bond may not be considered. All proposal guaranties will be returned un-negotiated, after the bids are opened, except those of the three (3) lowest bidders, which the CITY may elect to hold until the successful bidder has executed the contract.

3.13 PREPARATION OF PROPOSALThe bidder has the option of either submitting the proposal on the forms furnished by the CITY in the contract documents, or submitting a computer print-out proposal in lieu of the CITY’S Proposal form.

Preparation of Proposal on Forms Supplied by CITY:

All blank spaces in the form must be correctly filled in and the bidder must state the prices, typed or written in ink, both in words and numerals, for which the bidder proposes to do the Work contemplated or furnish the material required. It will be the bidder’s responsibility to ensure that all unit prices written in words will be clear and legible. Illegibly written unit prices will result in the proposal being rejected and will not be considered as an irregularity of the proposal. In case of a discrepancy between the unit price written in words, the unit price written in figures, and/or the item extension written in figures, the unit price written in words will govern.

The Total Bid Price must be shown in both numbers and words.

Acknowledgement of all addenda, typed name and title of person signing proposal, authorized signature and date shall also be included.

Preparation of Proposal on Computer Print-Out Supplied by Bidder:

The computer print-out proposal shall be in spreadsheet format, using software of the bidder’s selection. As a minimum, a computer print-out must include the following information: Bid Item Number, Approximate Quantities, Unit of Measure, Bid Item Description, Written Unit Price, Unit Bid Price, Extended Price (Amount), as well as Total Bid Price. Line items must be in the same order as on the CITY’S Proposal form (see example below):

Bid Item Quantity Unit

Item Description and Written Unit Price

Unit Price Amount

The Total Bid Price must be shown in both numbers and words.

Acknowledgement of all addendums, typed name and title of person signing proposal, authorized of 88


signature and date shall also be included.

All computer print-out proposals shall be delivered, in hard copy (i.e. no fax or e-mail submittals) to the designated location, at or before the designated time and include the following certification:

[Insert bidder’s name here] certifies that the unit prices shown on this complete computer print-out for all the bid items and alternates contained in this proposal are the unit prices intended and that its bid will be tabulated using these unit prices and no other information from this print-out. [Insert bidder’s name here] acknowledges and agrees that the total bid amount shown will be read as its total bid and further agrees that the official total bid amount will be determined by multiplying the unit bid prices shown in this print-out by the respective estimated quantities shown in the City of Tyler issued proposal and totaling all of the extended amounts.

Typed Name:Title:Signature:Date:

3.14 SIGNATURE REQUIREMENTS OF PROPOSAL1. If a proposal is submitted by an individual, the proposal must be signed by the individual

or the individual's duly authorized agent.2. If the proposal is submitted by a firm, association, partnership or company, the name

and address of each member must be given and the proposal signed by a member of the firm, association, partnership, company or person duly authorized.

3. If the proposal is submitted by a corporation, the company or corporate name and address must be given and the proposal signed by an official or duly authorized agent and sealed with the corporate seal. Powers of attorney authorizing agents or others to sign proposals must be properly certified and must be in writing and submitted with the proposal.

3.15 FILING OF BID PACKAGESNo bid package will be considered unless it is filed with the duly authorized agent of the OWNER within the time limit for receiving bid packages as stated in the advertisement. Each bid package must be in a sealed envelope, plainly marked with the word "proposal", and the name or description of the project and time and date the bid package is to be opened as designated in the Notice to Bidders.

The bid package must consist of the following items to be considered complete:

1. Acknowledgment of all addenda2. Proposal3. Bid Bond

Any bid package received without each of the required items may be rejected and may not be read at the bid opening.

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A fully executed Contractor's Qualification Statement shall be on file with the CITY prior to bid opening or included as part of the CONTRACTOR'S bid package. Forms are available from the City Engineer and/or Utilities Engineer.

3.16 WITHDRAWING OR MODIFYING BID PACKAGESA bidder may withdraw a bid package provided a written request to do so is in the hands of the official indicated in the Notice to Bidders by the time set for opening of bid packages. A bidder may change the unit prices in the proposal provided a written request to do so is in the hands of the OWNER prior to the time set for opening of bid packages. Requests by telephone or FAX for changes in bid prices or for withdrawal of bid packages will not be considered. No bid packages will be withdrawn within sixty (60) calendar days after the bid opening.

3.17 OPENING BID PACKAGESThe bid package filed with the OWNER will be opened at the time stated in the Notice to Bidders and publicly read aloud, and will thereafter remain on file with the OWNER or Project Designer. Bidders or their agents are invited to be present.

3.18 IRREGULAR PROPOSALSProposals will be considered irregular if they show any omissions, alterations of form, additions, or conditions not called for, unauthorized alternate bids, or irregularities of any kind. However, the OWNER reserves the right to waive any irregularities and to make the award in the best interests of the OWNER and CITY.

3.19 DISQUALIFICATION OF BIDDERSBidders may be disqualified and their bid package not considered for any of the following specific reasons:1. Reason to believe collusion exists among the bidders.2. The bidder is in arrears on any existing contract or has defaulted on a previous contract.3. The bidder is interested in any litigation against the CITY.4. Uncompleted Work which in the judgment of the CITY will prevent or hinder the prompt

completion of additional Work if awarded.5. Poor performance in the execution of Work under previous contracts.6. The bidder is determined to have an unacceptable safety record.7. Incomplete bid packages (see Section 3.15, “Filing of Bid Packages”).8. Proposals in which prices are obviously unbalanced (see Section 3.6, “Unit Prices”).9. Proposals which are irregular (see Section 3.18, “Irregular Proposals”).10. CONTRACTOR is not qualified to perform this Work, as determined by the CITY.11. CONTRACTOR is not on CITY’S Approved Contractors List or Contractor’s

Qualification Statement is not on file with the CITY prior to bid opening nor included as part of the bid package. Note: Submittal of Contractor’s Qualification Statement with bid package may result in delay of contract.

12. Failure to have an authorized agent of the bidder at a Pre-Bid Conference, when attendance is mandatory.

3.20 CONSIDERATION OF PROPOSALSAfter bid packages are opened, the proposals will be tabulated for comparison on the basis of the

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bid prices and quantities shown in the proposal.

3.21 CITY MAY REJECT BID PACKAGESUntil final award of the contract, the CITY reserves the right to reject any or all bid packages, to waive technicalities, and to re-advertise for new bids, or proceed to do the Work otherwise in the best interests of the CITY (TEX. LOC. GOV’T CODE ANN. §252.043(f); §271.027(a)).

3.22 AWARD OF CONTRACTAfter all submitted bid packages have been opened and read aloud, the proposals submitted will be reviewed and tabulated in order from low to high bid. Upon request, a copy of the tabulation will be forwarded to each bidder submitting a qualified bid package up. The OWNER reserves the right to withhold the award of the contract for a period of time not to exceed sixty (60) calendar days from the date of opening bid packages.

3.23 RETURN OF BIDDER’S BONDAs soon as bid prices have been tabulated for comparison of bids, the OWNER may, at its discretion, return the proposal guaranties accompanying the bid packages which, in its judgment, would not be considered in the award; all other proposal guaranties will be retained by the OWNER until the required contract and bonds have been executed, after which they will be returned. No proposal guaranties will be returned until at least two (2) calendar days have elapsed from time of opening bid packages.

3.24 SUBMISSION OF POST BID INFORMATIONUpon request by the OWNER, the selected bidder must, within seven (7) calendar days thereafter, submit the following:1. A designation of the Work to be performed by the bidder with the bidder’s own forces.2. A list of names of the subcontractors or other persons or organizations (including those

who are to furnish materials or equipment fabricated to a special design) proposed for such portions of the Work as may be designated in the bidding documents or, if no portions are so designated, the names of the subcontractors proposed for stated portions of the Work.

The bidder will be required to establish to the satisfaction of the Project Designer and the OWNER the reliability and responsibility of the proposed subcontractors to furnish and perform such portions of the Work. Prior to the award of the contract, the Project Designer will notify the bidder in writing if either the OWNER or the Project Designer, after due investigation, has reasonable and substantial objection to any person or organization on such list. Subcontractors and other persons and organizations proposed by the bidder and accepted by the OWNER and the Project Designer must be used on the Work for which they were proposed and accepted and will not be changed except with the written approval of the OWNER and the Project Designer.

3.25 CONTRACT BONDSThe CONTRACTOR is required, pursuant to TEX. GOV’T CODE ANN. § 2253.021, and/or the Standard Form of Agreement to execute all bonds before commencing the work. The contract shall not be in effect until CONTRACTOR executes the AGREEMENT and files with the CITY a good and sufficient Statutory Performance and Maintenance Bond and Payment Bond (when applicable) or Payment Bond on standard forms and in the amount equal to one

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hundred percent (100%) of the total amount of the contract. Such bonds are furnished by the CONTRACTOR and approved by the CITY.

A Performance and Maintenance Bond and Payment Bond shall be required for contract amounts in excess of one hundred thousand dollars ($100,000).

Payment Bond shall be required for all projects regardless of value.

Within fifteen (15) calendar days after written notification of the award of the contract, the CONTRACTOR shall submit Statutory Performance and Maintenance Bond and Payment Bond (when applicable) or Payment Bond to CITY on standard forms as required by the AGREEMENT.

3.26 INSURANCECONTRACTOR agrees, at its sole expense, to maintain on a primary basis during the life of the Contract and the performance of Work, required insurance coverages, limits, and endorsements. Insurance required by the AGREEMENT for the CITY as additional insured shall be primary insurance and not contributing with any other insurance available to CITY.

CONTRACTOR agrees to provide evidence of the required coverages at execution of contract. In the event the CONTRACTOR performs any site work, other than testing, then all the insurance required will need to be evidenced prior to commencement of said site work.

3.27 EXECUTION OF CONTRACTThe person(s), partnership, company, firm, association or corporation to whom a contract is awarded must, within fifteen (15) calendar days after receipt of the contract, sign the necessary agreements entering into the required contract with the CITY. No contract will be binding on the CITY until it has been approved by the City Attorney, executed by the City Manager, attested by the City Clerk, and delivered to the CONTRACTOR.

3.28 FAILURE TO EXECUTE CONTRACTThe failure of the bidder to execute the required bonds or to sign the required contract within fifteen (15) calendar days after receipt of the contract will be considered by the OWNER as an abandonment of the proposal and the OWNER may annul the award. By reason of the uncertainty of the market prices of materials and labor, and it being impracticable and difficult to determine accurately the amount of damages accruing to the OWNER by reason of said bidder's failure to execute said bonds and contract within said fifteen (15) calendar days, the proposal guaranty accompanying the proposal will be the agreed amount of damages which the OWNER will suffer by reason of such failure on the part of the bidder, and will thereupon immediately be forfeited to the OWNER. The filing of a bid package will be considered as an acceptance of this provision.

3.29 BEGINNING OF WORKThe CONTRACTOR will not begin Work until notified in writing by the CITY to do so.

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SECTION 4 POLICY STATEMENT ON EEO

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SECTION 5 PROPOSAL

[Insert Proposal Here]

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SECTION 6 BID BONDCheck Here if this Section is NOT Used ☐

THE STATE OF TEXAS §§ BID BOND

COUNTY OF SMITH §

THAT, [contractor], as PRINCIPAL, and [surety], as SURETY, acknowledge their indebtedness and are held and firmly bound unto the City of Tyler (CITY), Texas in Smith County, as OBLIGEE, in the amount of [insert figure using written words], ($ ) [insert numerical figure] payable to the City of Tyler, Texas for the payment of which, the said PRINCIPAL (Contractor) and SURETY bind themselves, and their heirs, administrators, executors, successors, legal representatives, and assigns, jointly and severally, firmly by these presents.

PRINCIPAL (Contractor) is about to submit to OBLIGEE (City) a bid or proposal for:


in accordance with plans and specifications filed in OBLIGEE’S (City’s) office and under the Request for Quotation (RFQ) / Invitation to Bid therefor.

NOW THEREFORE:THE CONDITION OF THIS OBLIGATION IS THAT IF:

1) the bid or proposal is rejected, or2) the bid or proposal of PRINCIPAL (Contractor) is accepted; and

a. the contract for the work is awarded to PRINCIPAL (Contractor) by OBLIGEE (City),

b. PRINCIPAL (Contractor) enters into a written contract in the form of contract provided in these contract documents (properly completed in accordance with the bid),

c. PRINCIPAL (Contractor) furnishes a Performance and Maintenance Bond for the performance of the work as required by law and/or the AGREEMENT,

d. PRINCIPAL (Contractor) furnishes a Payment Bond for the payment of all persons performing labor or furnishing materials in connection therewith as required by law and/or the AGREEMENT, and

e. PRINCIPAL (Contractor) in all other respects performs the agreement created by the acceptance of the bid,

then this obligation will be null and void; otherwise, subject to the following limitation, it will remain in full force and effect.

The limitation referred to above is that surety, in any event, will not be liable for a greater amount than the difference between the amount of principal's bid or proposal and the lowest amount in excess of that bid or proposal for which CITY may be able to award the contract within a reasonable time.

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The SURETY, for value received, hereby stipulates and agrees that the obligations of said SURETY and its Bond shall be in no way impaired or affected by any extension of the time within which the OBLIGEE (City) may accept such bid; and said SURETY does hereby waive notice of any such extension.

I (WE) CERTIFY that the SURETY is registered by the State Board of Insurance to conduct business in the State of Texas, and acceptable according to the latest list of companies holding Certificates of Authority from the Secretary of the Treasury of the United States, shown on the Treasury List.

I (WE) CERTIFY that the SURETY has reviewed the financial condition of the PRINCIPAL and the PRINCIPAL’S qualification to perform the work required by this project.

IN WITNESS WHEREOF the PRINCIPAL (Contractor) and SURETY have hereunto set their hands and seals, and such of them as are corporations have caused their corporate seals to be hereunto affixed and these presents to be signed by their proper officers, the day and year set forth below.

Signed this day of , 20 .

BOND NUMBER:

PRINCIPAL (Contractor) SURETY

Printed Name of Principal Printed Name of Surety

Physical Address Physical Address

Mailing Address Mailing Address

Telephone Number Telephone Number

By: By:Signature Signature

Title Title

SURETY’S SEAL:

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***** NOTE *****

If signed by an Attorney-in-Fact a copy of the Power of Attorney shall be attached, or

If signed by an officer of the Surety Company a certified extract from the by-laws showing that this person has authority to sign obligation shall be attached.

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SECTION 7 STANDARD FORM OF AGREEMENT

THE STATE OF TEXAS § STANDARD FORM OF AGREEMENT§ FOR§§ CITY OF TYLER §

COUNTY OF SMITH § TYLER WATER UTILITIES (TWU) 3-WAY CONTRACT


THIS AGREEMENT, made and entered into this this day of ,20 , by and between Enter name of Owner, of the City of Enter name of City, County of Enter name of County, State of Texas, hereinafter termed “OWNER”, and Enter name of Contractor, of the City of Enter name of City, County Enter name of County, State of Texas, hereinafter termed “CONTRACTOR”, and the City of Tyler, Texas, hereinafter termed “CITY”.

WHEREAS, pursuant to the provisions of Chapter 19. Utilities; Article II. Water and Sewer System Extension; Section 19- Enter Code reference of the Tyler City Code, OWNER and CONTRACTOR desire to enter into a private contract for the installation of water and/or sanitary sewer facilities in order to serve a real estate subdivision in the City of Tyler; and

WHEREAS, the OWNER and CONTRACTOR have requested the approval of the CITY for the commencement of the construction described in this Standard Form of Agreement and desire to perform such construction under the supervision of the CITY; and

THAT FOR AND IN CONSIDERATION of the following mutual covenants set forth in this Standard Form of Agreement and under the conditions expressed in the contract documents and in the bond bearing even date herewith; OWNER and CONTRACTOR hereby agree with CITY as follows:

WITNESSETH:7.1 DESCRIPTION OF WORKCONTRACTOR will perform all the work required by the contract documents and said work shall be done under the supervision of the representative of the CITY. The work will consist of the completion of construction of certain improvements and all extra work in connection therewith, in accordance with the prices and conditions stated in the contract documents and at CONTRACTOR'S cost and expense to furnish all materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete the said construction.

7.2 CONTRACT DOCUMENTSThe contract documents constitute the entire AGREEMENT between the CITY, OWNER and CONTRACTOR, and all are as fully a part of the contract as if attached to or repeated in this

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Standard Form of Agreement.

The contract documents are as follows: Notice to Bidders, All addenda issued prior to execution of this Standard Form of Agreement, Instructions to Bidders, CITY Policy Statement on Equal Opportunity Employment, Proposal, Bid Bond and Special Bonds (if any), Standard Form of Agreement, Statutory Performance and Maintenance Bond and Payment Bond (if applicable), Payment Bond, Certificate(s) of Insurance, Endorsements, Property Owner’s Acknowledgement of Development, Contractor’s Affidavit of Bills Paid and Waiver and Lien Releases, Owner’s Affidavit of Bill Paid and Waiver and Lien Releases, General Conditions, Special Conditions, CITY specifications governing water and/or sanitary sewer installation within the CITY

titled City of Tyler Standard Specifications, Technical and/or Special Specifications, Plans and other drawings and printed or written explanatory matter thereof, and All field orders and change orders issued after execution of this Standard Form of

Agreement.

In case of conflict between any of the contract documents, priority of interpretation shall be in the following order:1. Signed Standard Form of Agreement,2. Statutory Performance and Maintenance Bond and Payment Bond (if applicable) or

Payment Bond,3. Special Bonds (if any),4. Proposal,5. Special Conditions,6. Special Specifications,7. City of Tyler Standard Specifications,8. Technical Specifications,9. Plans, and10. General Conditions.

7.3 TIME OF COMMENCEMENT AND COMPLETIONCONTRACTOR hereby agrees to commence work within ten (10) calendar days after the date specified in the Notice to Proceed, to diligently pursue the work without extended interruption and to complete in full the same either:

1) ☐ within Enter amount using words, (Enter amount using figures) Choose an item after the date specified in the written Notice to Proceed, or

2) ☐ on or before the mandatory completion date of Enter mandatory completion date,subject to such extensions of time as are provided by the General Conditions.

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7.4 CONTRACT PRICEOWNER agrees to pay to the CONTRACTOR the contract amount of Enter amount using words, ($Enter amount using figures) such payments to be subject to the General Conditions of the contract.

7.5 BONDSThe CONTRACTOR is required, pursuant to TEX. GOV’T CODE ANN. § 2253.021, and/or this Standard Form of Agreement to execute all bonds before commencing the work. The contract shall not be in effect until CONTRACTOR executes the AGREEMENT and files with the CITY a good and sufficient Statutory Performance and Maintenance Bond and Payment Bond (when applicable) or Payment Bond on standard forms and in the amount equal to one hundred percent (100%) of the total amount of the contract. Such bonds are furnished by the CONTRACTOR and approved by the CITY.

A Performance and Maintenance Bond and Payment Bond shall be required for contract amounts in excess of one hundred thousand dollars ($100,000).

Payment Bond shall be required for all projects regardless of value.

Within fifteen (15) calendar days after written notification of the award of the contract, the CONTRACTOR shall submit Statutory Performance and Maintenance Bond and Payment Bond (when applicable) or Payment Bond to CITY on standard forms as required by the AGREEMENT.

See Section 16.7, “Bonds” in the General Conditions for a description and explanation of the bonds required for this AGREEMENT.

7.6 INSURANCECONTRACTOR agrees, at its sole expense, to maintain on a primary basis during the life of this Contract and the performance of Work hereunder, insurance coverage, limits, and endorsements. Insurance required by this AGREEMENT for the CITY as additional insured shall be primary insurance and not contributing with any other insurance available to CITY.

CONTRACTOR agrees to provide evidence of the required coverage’s at execution of contract. In the event the CONTRACTOR performs any site work, other than testing, then all the insurance required by AGREEMENT will need to be evidenced prior to commencement of said site work.

See generally Section 16.8, “Insurance Required” in the General Conditions for the contractual types and amounts of insurance and endorsements required for this AGREEMENT.

See also Section 10, “Certificate(s) of Insurance” for a chart and checklist providing a summary and overview of the insurance requirements.

See also Section 11, “Endorsements” for a chart providing a summary and overview of the endorsement requirements.

In case of conflict between Section 10 and/or Section 11 and/or the insurance requirements

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described in the General Conditions, priority of interpretation shall be given first to the General Conditions.

7.7 CITY AND OTHERS INDEMNIFIEDCONTRACTOR AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY AND OWNER, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, PROJECT DESIGNER AND AGENTS (COLLECTIVELY REFERRED TO AS THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ALL LIABILITY FOR ANY AND ALL CLAIMS, LIENS, DEMANDS, AND DAMAGES OF EVERY KIND FOR INJURIES TO PERSONS INCLUDING DEATH, PROPERTY DAMAGE INCLUDING LOSS OF USE, AND EXPENSES INCLUDING ATTORNEY’S FEES (COLLECTIVELY, THE “HARM”) ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OF THIS AGREEMENT, BUT ONLY PROPORTIONALLY TO THE EXTENT THAT THE HARM WAS CAUSED BY THE NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS OF (I) CONTRACTOR, (II) ANY PERSON OR ENTITY ACTING BY OR THROUGH THE AUTHORITY OF THE CONTRACTOR IN FURTHERANCE OF THE PERFORMANCE OF THIS CONTRACT, AND/OR (III) ANY SUBCONTRACTOR, OR ANYONE FOR WHOSE ACTS THE CONTRACTOR OR SUBCONTRACTOR IS LIABLE, REGARDLESS OF WHETHER OR NOT SUCH HARM OCCURRED ON PROPERTY BELONGING TO THE CITY. THE CONTRACTOR’S INDEMNIFICATION OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CONTRACTOR’S INDEMNIFICATION OBLIGATIONS PROVIDED HEREIN SHALL SURVIVE AND BE ENFORCEABLE BY THE INDEMNIFIED PARTIES (SUBJECT TO THE PROPORTIONALITY LIMITATIONS SET FORTH IN THIS PARAGRAPH) DESPITE A DETERMINATION OR FINDING OF CONCURRENT, COMPARATIVE, OR CONTRIBUTORY NEGLIGENCE OF EITHER THE CONTRACTOR OR THE INDEMNIFIED PARTIES.

CONTRACTOR agrees to comply with the Workmen’s Compensation Act of the State of Texas and to pay or cause to be paid all compensation, medical or hospital bills which may become due and payable thereunder, and to indemnify, hold harmless and defend CITY AND OWNER from and against any and all liability by reason of injury of employees of CONTRACTOR. CONTRACTOR shall furnish CITY with a Certificate from its Insurance Carrier evidencing CONTRACTOR’S compliance therewith (see Section 16.8, “Insurance Required”).

CONTRACTOR AGREES TO COMPLY WITH ABOVE REQUIREMENTS IN CONNECTION WITH SERVICES AND/OR WORK COVERED UNDER THIS PROJECT.

7.8 VENUEThis agreement shall be construed in accordance with the laws of the State of Texas and the ordinances of the City of Tyler. Venue for any action brought to enforce or interpret this agreement shall lie exclusively in a court of competent jurisdiction in Smith County, Texas for actions in state court, and in the Eastern District of Texas, Tyler Division, for actions in federal court.

7.9 AFFIDAVIT OF BILLS PAID AND FINAL PAYMENT TO CONTRACTORPursuant to TEX. PROP. CODE ANN. § 53.085(a) and this Standard Form of Agreement

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CONTRACTOR shall furnish a Contractor’s Affidavit of Bills Paid and executed Waiver and Lien Release forms to CITY stating that the work for the construction of said project has been satisfactorily completed; and that all bills for materials, supplies, apparatus, fixtures, machinery, labor, subcontractors, laborers and materialmen used in connection with the construction of this project have been fully paid.

Pursuant to TEX. PROP. CODE ANN. § 53.085(a) and this Standard Form of Agreement OWNER shall furnish an Owner’s Affidavit of Bills Paid and executed Waiver and Lien Release forms to CITY stating that the work for the construction of said project has been satisfactorily completed; and that all bills for materials, supplies, apparatus, fixtures, machinery, labor, subcontractors, laborers and materialmen used in connection with the construction of this project have been fully paid.

Upon receipt of the notification of completion, the Project Designer shall proceed to make final measurements and prepare a final statement of the value of all work performed and materials furnished under the terms of the AGREEMENT and shall certify same to OWNER, who shall pay to the CONTRACTOR, the balance due the CONTRACTOR under the terms of this Standard Form of Agreement, provided he has fully performed his contractual obligations under the terms of the AGREEMENT; and said payment shall become due in any event upon said performance by the CONTRACTOR. Neither the written notice of final acceptance nor the final payment, nor any provision in the contract documents, shall relieve the CONTRACTOR of the obligation for fulfillment of any warranty which may be required.

7.10 FINAL ACCEPTANCE – PROPERTY OF CITY OF TYLERIt is understood and agreed that the aforesaid water and/or sanitary sewer facilities installed under this contract, exclusive of sewer service connection, shall immediately become the property of the CITY upon acceptance by the CITY free and clean of any encumbrances.

7.11 NOTICESAny notices provided under this Standard Form of Agreement shall occur in writing. For purposes of such notice, the addresses of the parties, until changed by written notice, shall be:

OWNER’S CONTACT: CONTRACTOR’S CONTACT:

Name Enter contact name here Name Enter contact name here

Address Enter business name or address here Address Enter business name or

address hereEnter address here Enter address hereEnter city, state, zip here Enter city, state, zip here

Phone Enter phone number here Phone Enter phone number hereFAX Enter fax number here FAX Enter fax number hereE-mail Enter email address here E-mail Enter email address here

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CITY’S CONTACT:Name Enter contact name here

Address City of TylerP.O. Box 2039Tyler, TX 75710

Phone (903) Enter phone number here

FAX (903) Enter fax number hereE-mail Enter email address here

OWNER and CONTRACTOR hereby bind themselves, their heirs, successors and assigns and representatives for the faithful and full performance of the terms and provisions of this contract, jointly and severally.

IN WITNESS WHEREOF, the parties to these presents have executed this Standard Form of Agreement in the year and day first above written.

FOR THE CITY OF TYLER, TEXAS:ATTEST:

By: By:City Manager City Clerk

Edward Broussard Cassandra BragerPrinted Name Printed Name

APPROVED: RECOMMENDED:

By: By:City Attorney’s Office Interim Director of Utilities

Gordon Mayer, P.E.Printed Name Printed Name


PERMITTED BY CITY CODE SECTION:

19-Enter Code reference

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FOR THE OWNER:

By:

Enter Title hereTitle

Enter Printed Name herePrinted Name

THE STATE OF TEXAS §§ OWNER’S ACKNOWLEDGEMENT

COUNTY OF SMITH §

BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared , who is known to me, or who was proved to me through to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed same for the purposes and consideration therein expressed.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 20 .

Notary Public In and For The State of Texas

My Commission Expires: Notary's Printed Name

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FOR THE CONTRACTOR:

By:

Enter Title hereTitle

Enter Printed Name herePrinted Name

THE STATE OF TEXAS §§ CONTRACTOR’S ACKNOWLEDGEMENT

COUNTY OF SMITH §





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SECTION 8 PERFORMANCE AND MAINTENANCE BOND AND PAYMENT BOND

Check Here if this Section is NOT Used ☐

THE STATE OF TEXAS § STATUTORY§ PERFORMANCE AND MAINTENANCE BOND§ AND§ PAYMENT BOND§§§ PURSUANT TO§§ CITY POLICY, AGREEMENT § AND/OR

COUNTY OF SMITH § TEX. GOV’T CODE, TITLE 10, CHAPTER § 2253

THAT, [contractor], as PRINCIPAL, and [surety], a corporation organized and existing under the laws of the State of Texas, licensed to do business in the State of Texas and admitted to write bonds, as SURETY, are held and firmly bound unto the City of Tyler (CITY), Texas in Smith County, as OBLIGEE, in the amount of [insert figure using written words], ($ ) [insert numerical figure] payable to the City of Tyler, Texas for the payment of which, the said PRINCIPAL (Contractor) and SURETY bind themselves, and their heirs, administrators, executors, successors, legal representatives, and assigns, jointly and severally, firmly by these presents.

WHEREAS, the PRINCIPAL (Contractor) has entered into a certain contract with the OBLIGEE (City), dated the day of , 20 [insert date from Standard Form of Agreement], for:


which contract is hereby referred to as the AGREEMENT and made a part hereof as fully and to the same extent as if copied at length herein;

WHEREAS, the performance bond guarantees the OBLIGEE (City) that the PRINCIPAL (Contractor) will fully and faithfully execute the Work and performance of the AGREEMENT according to its terms including price and time and is solely for the protection of the OBLIGEE (City) in the amount of the contract and conditioned on the faithful performance of the work in accordance with the plans, specifications, and contract documents;

WHEREAS, pursuant to TEX. GOV’T CODE ANN. § 2253.021 and the Standard Form of Agreement, a performance bond is required when the contract amount is in excess of one hundred thousand dollars ($100,000);

WHEREAS, the maintenance bond guarantees the OBLIGEE (City) that the PRINCIPAL of 88


(Contractor) will guarantee the Work against faulty workmanship and/or materials for a specified period of time following completion of the AGREEMENT;

WHEREAS, pursuant to City policy and the Standard Form of Agreement a maintenance bond shall accompany the performance bond for the PRINCIPAL (Contractor) to guarantee the Work against faulty workmanship and/or materials for a maintenance period of a specified period of one (1) year after the date of final acceptance of the Work;

WHEREAS, the payment bond guarantees the OBLIGEE (City) that the PRINCIPAL (Contractor) shall pay all bills for materials and labor for work provided for in said AGREEMENT and is solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the prime contractor or a subcontractor to supply public work, labor or material and in the amount of the contract;

WHEREAS, pursuant to TEX. GOV’T CODE ANN. § 2253.021, for contracts in excess of $25,000 a payment bond is required; however, pursuant to CITY Policy and the Standard Form of Agreement a payment bond shall be required for ALL projects regardless of value;

WHEREAS, the PRINCIPAL (Contractor), is required by law, pursuant to TEX. GOV’T CODE ANN. § 2253.021 and/or the Standard Form of Agreement, to execute all bonds before commencing the Work.

NOW THEREFORE:

THE FIRST (1st) CONDITION OF THIS OBLIGATION IS SUCH, that if the said PRINCIPAL shall faithfully perform the Work required by and in accordance with the AGREEMENT then this obligation shall be null and void; otherwise it shall remain in full force and effect;

THE SECOND (2nd) CONDITION OF THIS OBLIGATION IS SUCH, that if the said PRINCIPAL (Contractor) shall faithfully perform the Work required by and in accordance with the AGREEMENT including any performance required of said PRINCIPAL (Contractor) for a maintenance period of one (1) year after the date of final acceptance of the work, then this obligation shall be null and void; otherwise it shall remain in full force and effect;

THE THIRD (3rd) CONDITION OF THIS OBLIGATION IS SUCH, that if the said PRINCIPAL (Contractor) shall pay all claimants supplying the labor and material to him or a subcontractor in the prosecution of the Work provided for in said AGREEMENT, then this obligation shall be null and void; otherwise it shall remain in full force and effect;

PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the TEX. GOV’T CODE ANN. and all liabilities on this bond shall be determined in accordance with the provision, conditions and limitations of said Chapter to the same extent as if it were copied at length herein.

SURETY, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the AGREEMENT, or to the Work performed hereunder, or the plans, specifications, or drawings accompanying the same, shall in anywise affect its obligation on this bond, and SURETY does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the AGREEMENT, or to the Work performed thereunder.

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The undersigned SURETY company represents that it is duly qualified to do business in Texas and is registered by the State Board of Insurance to conduct business in the State of Texas, and acceptable according to the latest list of the companies holding Certificates of Authority from the Secretary of the Treasury of the United States and hereby designates [insert Agent’s name], an agent in Smith County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship and to establish venue in Smith County, Texas.

IN WITNESS WHEREOF, the said PRINCIPAL (Contractor) and SURETY have signed and sealed this instrument this _____ day of _______________, 20_____.

DATE OF BONDS MUST NOT BE PRIOR TO DATE ON Standard Form of Agreement

BOND NUMBER:







Title Title

SURETY’S SEAL:

***** NOTE *****



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SECTION 9 PAYMENT BOND ONLYCheck Here if this Section is NOT Used ☐

THE STATE OF TEXAS § PAYMENT BOND§§§ PURSUANT TO§§ CITY POLICY, AGREEMENT § AND/OR

COUNTY OF SMITH § TEX. GOV’T CODE, TITLE 10, CHAPTER § 2253

THAT, [Contractor], as PRINCIPAL, and [surety], a corporation organized and existing under the laws of the State of Texas, licensed to do business in the State of Texas and admitted to write bonds, as SURETY, are held and firmly bound unto the City of Tyler (CITY), Texas in Smith County, as OBLIGEE, in the amount of [insert figure using written words], ($ ) [insert numerical figure] payable to the City of Tyler, Texas for the payment of which, the said PRINCIPAL (Contractor) and SURETY bind themselves, and their heirs, administrators, executors, successors, legal representatives, and assigns, jointly and severally, firmly by these presents.

WHEREAS, the PRINCIPAL (Contractor) has entered into a certain contract with the OBLIGEE (City), dated the day of , 20 [insert date from Standard Form of Agreement], for:


which contract is hereby referred to as the AGREEMENT and made a part hereof as fully and to the same extent as if copied at length herein;

WHEREAS, the payment bond guarantees the OBLIGEE (City) that subcontractors and suppliers will be paid monies that they are due from the PRINCIPAL (Contractor) and is solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the prime contractor or a subcontractor to supply public work, labor or material and in the amount of the contract;

WHEREAS, pursuant to TEX. GOV’T CODE ANN. § 2253.021, for contracts in excess of $25,000 a payment bond is required; however, pursuant to CITY Policy and the Standard Form of Agreement a payment bond shall be required for ALL projects regardless of value;

WHEREAS, the PRINCIPAL (Contractor), is required, pursuant to TEX. GOV’T CODE ANN. § 2253.021, and/or the Standard Form of Agreement, to execute the payment bond before commencing the Work.

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NOW THEREFORE:

THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said PRINCIPAL (Contractor) shall pay all claimants supplying the labor and material to him or a subcontractor in the prosecution of the Work provided for in said AGREEMENT, then this obligation shall be null and void; otherwise it shall remain in full force and effect;

PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of TEX. GOV’T CODE ANN. Chapter 2253 and all liabilities on this bond shall be determined in accordance with the provision, conditions and limitations of said Chapter to the same extent as if it were copied at length herein.

SURETY, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the AGREEMENT, or to the Work performed hereunder, or the plans, specifications, or drawings accompanying the same, shall in anywise affect its obligation on this bond, and SURETY does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the AGREEMENT, or to the Work performed thereunder.

The undersigned SURETY company represents that it is duly qualified to do business in Texas and is registered by the State Board of Insurance to conduct business in the State of Texas, and acceptable according to the latest list of the companies holding Certificates of Authority from the Secretary of the Treasury of the United States and hereby designates [insert Agent’s name], an agent in Smith County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship and to establish venue in Smith County, Texas.

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IN WITNESS WHEREOF, the said PRINCIPAL (Contractor) and SURETY have signed and sealed this instrument this day of , 20 .

DATE OF BONDS MUST NOT BE PRIOR TO DATE ON Standard Form of Agreement

BOND NUMBER:







Title Title

SURETY’S SEAL:

***** NOTE *****



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SECTION 10 CERTIFICATE(S) OF INSURANCE[Certificate of Liability Insurance Shall Be Inserted Here]

INSURANCE COVERAGE REQUIRED * Endorsement RequiredTYPE AMOUNT1) COMMERCIAL GENERAL LIABILITY *Policy shall include (but not limited to) the following:a) Products - Completed Operationsb) Independent Contractorsc) Broad Form Property Damaged) X-C-U Coverage

X = Explosion HazardC = Collapse HazardU = Underground Damage

e) Contractual Liability or Cross Liability

Not Less than:$1,000,000 (1 million) Each Occurrence$2,000,000 (2 million) General Aggregate Per Project

Any Self-Insured-Retention or Deductible shall not exceed $25,000.2) BUSINESS AUTOMOBILE LIABILITYPolicy shall include (but not limited to) bodily injury and property damage liability for the following:a) Any Auto; ORb) All Owned Autos, andc) Hired Autos, andd) Non-Owned Autos.

Not Less than:$1,000,000 (1 million) Each Occurrence

3) ♦ CONTRACTOR’S PROFESSIONAL ERRORS & OMISSIONS LIABILITY

Policy shall include (but not limited to) the following:a) A minimum three (3) year Discovery (tail)

Reporting period, and b) A Retroactive Date that equals or precedes

the effective date of the Contract, or the performance of services hereunder.

♦ ☐ Check Here If Coverage is Required by a City Operational Department

Not Less than:$1,000,000 (1 million) Each Occurrence$2,000,000 (2 million) General Aggregate

Any Self-Insured-Retention or Deductible shall not exceed $25,000.4) ♦ INLAND MARINE BUILDER’S RISK

INSURANCE *Policy shall include (but not limited to) the following:a) Amended Policy period of no less than

twenty-two (22) months or estimated project length whichever is longer.


An amount at least equal to one-hundred percent (100%) of the projected completed value of the Work, as well as subsequent modifications of that sum due to Change Orders.

5) ♦ CONTRACTOR’S POLLUTION LIABILITY INSURANCE *



6) COMMERCIAL UMBRELLA / EXCESS LIABILITY *


Any Self-Insured-Retention or Deductible shall not exceed $25,000. of 88


INSURANCE COVERAGE REQUIRED * Endorsement RequiredTYPE AMOUNT7) WORKERS’ COMPENSATION AND

EMPLOYER’S LIABILITYStatutory Limits for Workers’ CompensationTEX. LAB. CODE ANN. Title 5, Subtitle A, Chapter 401TEX. ADMIN. CODE, Title 28, Part 2Employer’s Liability Limits$1,000,000 (1 million) Bodily Injury by Accident$1,000,000 (1 million) Bodily Injury by Disease Each Occurrence$1,000,000 (1 million) Bodily Injury by Disease Aggregate Limit

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Checklist: Certificate(s) of Insurance * Provided only as a courtesy *

[See generally Section 16.8 General Conditions for contract insurance requirements]

1. All pages of the Certificate of Liability Insurance shall be attached.See lower right corner of certificate for ex toto pagination. e.g. Page 1 of 2

2. Policy Effective and Expiration Dates (for each type of coverage)

Policy effective date is ON or BEFORE Contract date, and Policy expiration date should extend at least 6 months into the future OR for the estimated project length, whichever is greater.

3. General Liability [See Section 16.8.3] Occurrence Box is Checked Per Project Box is Checked for General Aggregate Limit.

4. Automobile Liability [See Section 16.8.4]At a minimum each of the following boxes should be checked:

Any Auto;OR

All Owned Autos, and Hired Autos, and Non-Owned Autos.

5. Excess/Umbrella Liability [See Section 16.8.8] Occurrence Box is Checked

6. Workers Compensation and Employers Liability [See Section 16.8.15] WC Statutory Limits Box is Checked

7. Look at the “Description of Operations . . . Special Provisions” Box. [See Section 16.8.9] [See also Section 16.8.11]

Clearly indicate the CITY has been endorsed by using this language:

“The City of Tyler (i.e. Certificate Holder) shall be named as Additional Insured as respects to General Liability and Auto and shall have a Waiver of Subrogation as respects to General Liability, Auto and Workers’ Compensation all as required by written contract subject to policy terms, conditions and exclusions. Coverage is primary, non- contributory as respects to General Liability and Auto as required by written contract.”

8. Clearly identify each policy’s limits, flat & percentage deductibles, sub-limits, or self-insured retentions, which exceed the amounts or percentages set forth herein.

9. Certificate Holder: [See generally Section 16.8] [See Section 16.8.9]City of Tyler

P.O. Box 2039Tyler, TX 75710

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SECTION 11 ENDORSEMENTS[Endorsements Shall Be Inserted Here]

* ENDORSEMENT(S) REQUIREDName of Additional Insured Person(s)or Organization(s):

City of TylerP.O. Box 2039

Tyler, TX 75710

Location(s) of Covered Operations:

Project [insert project name], TWU Contract Number [insert contract number], Dated [insert month and year of contract].

Contractor shall choose one of the three Endorsement Option stated below. All Endorsements shall be in the form required. All pages of the Endorsement(s) shall be attached.

COMMERCIAL GENERAL LIABILITY

CONTRACTOR agrees to endorse the CITY as an “Additional Insured” on the Commercial General Liability with: [Select Option 1 or Option 2 below] [See Section 16.8.3 and 16.8.9]

Option1

FORM: CG 20 10 10 01Additional Insured - Owners, Lessees, or Contractors – Scheduled Person or OrganizationANDFORM: CG 20 37 07 04Additional Insured – Owners, Lessees, or Contractors – Completed Operations

OR

Option2

FORM: CG 20 10 07 04Additional Insured – Owners, Lessees, or Contractors – Scheduled Person or OrganizationANDFORM: CG 20 37 07 04Additional Insured – Owners, Lessees, or Contractors – Completed Operations

OR

Option3

FORM: GA 4113 11 99Additional Insured – Owners, Lessees, or Contractors – Scheduled Person or Organization – Your WorkANDFORM: GA 233 02 07Contractors’ Commercial General Liability Broadened – with coverage for Completed Operations in conformance to specific written contract

COMMERCIAL UMBRELLA / EXCESS LIABILITY

CONTRACTOR agrees to endorse the CITY as an “Additional Insured” under the Commercial Umbrella / Excess Liability as also provided herein. [See Section 16.8.8 and 16.8.9]

INLAND MARINE BUILDER’S RISK INSURANCE

♦ If applicable CONTRACTOR agrees to endorse the CITY as an “Additional Insured” under the Inland Marine Builders Risk Insurance as also provided herein. [See Section 16.8.6 and 16.8.9]

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SECTION 12 CONTRACTOR’S AFFIDAVIT OF BILLS PAID

THE STATE OF TEXAS § CONTRACTOR’S § AFFIDAVIT OF BILLS PAID§ 3-WAY CONTRACTS§

COUNTY OF SMITH § TEX. PROP. CODE ANN. § 53.085(A)

THIS AFFIDAVIT is made for the purpose of obtaining balance due from OWNER on the construction work described herein provided the CONTRACTOR has fully performed his contractual obligations under the terms of the AGREEMENT.

I, [Name of Affiant], do solemnly swear or affirm that I am the legal representative of [Contractor’s Company / Corporation Name], the City of , the County of , the State of , and that the work for the construction of the project designated below has been satisfactorily completed:


Additionally, I do solemnly swear or affirm:All bills for materials, supplies, apparatus, fixtures, machinery, labor, subcontractors, laborers and materialmen used in connection with the construction of this project have been fully paid.

ORThe following bills have not been fully paid ( attach additional pages if necessary):

NameAmount Owed Telephone Address

Signature of Contractor

Sworn to and subscribed before me by Affiant on the day of , 20 .



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SECTION 13 OWNER’S AFFIDAVIT OF BILLS PAID

THE STATE OF TEXAS § OWNER’S§ AFFIDAVIT OF BILLS PAID§ 3-WAY CONTRACTS§

COUNTY OF SMITH § TEX. PROP. CODE ANN. § 53.085(A)

THIS AFFIDAVIT is made for the purpose of obtaining final acceptance from City of Tyler, Tyler Water Utilities for the construction work described herein provided the CONTRACTOR has fully performed his contractual obligations under the terms of the AGREEMENT.

I, [Name of Affiant], do solemnly swear or affirm that I am the legal representative of [Owner’s Company / Corporation Name], the City of , the County of , the State of , and that the work for the construction of the project designated below has been satisfactorily completed:


Additionally, I do solemnly swear or affirm:All bills for materials, supplies, apparatus, fixtures, machinery, labor, subcontractors, laborers and materialmen used in connection with the construction of this project have been fully paid.

ORThe following bills have not been fully paid ( attach additional pages if necessary):

Name Amount Owed

Telephone Address

Signature of Owner

Sworn to and subscribed before me by Affiant on the day of , 20 .



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Section 14 WAIVER AND RELEASE

THE STATE OF TEXAS § CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT

§§ PURSUANT TO§§ AGREEMENT § AND/OR

COUNTY OF SMITH § PURSUANT TO TEX. PROPERTY CODE § 53.284FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT

BOND CLAIM

CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT(TWU) Contract Number Enter TWU contract number hereProject Name Enter project name here

On receipt by the signer of this document of a check from [Maker of Check] in the sum of $ payableto [Payee(s) of Check] and when the check has been properly endorsed and has been paid by the bank on which it is drawn, this document becomes effective to release any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position that the signer has on the propertyof [Owner] locatedat [Location] to the following extent: [Job Description].

This release covers the final payment to the signer for all labor, services, equipment, or materials furnished to the property or to [Person with Whom Signer Contracted].

Before any recipient of this document relies on this document, the recipient should verify evidence of payment to the signer.

The signer warrants that the signer has already paid or will use the funds received from this final payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project up to the date of this waiver and release.

Date _____________________________________________________________ (Company name)

By ______________________________ (Signature)_________________________________ (Title)

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THE STATE OF TEXAS § UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT

§§ PURSUANT TO§§ AGREEMENT§ AND/OR

COUNTY OF SMITH § PURSUANT TO TEX. PROPERTY CODE § 53.284FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT

BOND CLAIM

NOTICE:This document waives rights unconditionally and states that you have been paid for giving up those rights. It is prohibited for a person to require you to sign this document if you have not been paid the payment amount set forth below. If you have not been paid, use a conditional release form.

UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT(TWU) Contract Number Enter TWU contract number hereProject Name Enter project name here

The signer of this document has been paid in full for all labor, services, equipment, or materials furnished to the property or to [Person with Whom Signer Contracted] on the property of [Owner] located at [Location] to the following extent: [Job Description]. The signer therefore waives and releases any mechanic's lien right, any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights for persons in the signer's position.

The signer warrants that the signer has already paid or will use the funds received from this final payment to promptly pay in full all of the signer's laborers, subcontractors, materialmen, and suppliers for all work, materials, equipment, or services provided for or to the above referenced project up to the date of this waiver and release.

Date _____________________________________________________________ (Company name)

By ______________________________ (Signature)_________________________________ (Title)

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SECTION 15 PROPERTY OWNER’S ACKNOWLEDGEMENT OF DEVELOPMENT

THE STATE OF TEXAS § PROPERTY OWNER’S§§ ACKNOWLEDGEMENT OF

DEVELOPMENT§

COUNTY OF SMITH § 3-WAY CONTRACTS

Date: ____________________I Enter name of property owner here declare I am the Property owner of the following described tract:

≈ Acreage Enter acreage here

County Enter name of County here

Abstract No Enter abstract number here

Survey Enter name of survey hereAddress Enter address here

☐ I have given permission to Enter name of developer here to develop this land,OR☐ I am the Property Owner and Developer of this tract.This Property Owner’s Acknowledgement of Development is furnished to inform the City of Tyler that I will be responsible for payment of water and sewer extension expenses from the development of the land.

Signature of Property Owner

THE STATE OF TEXAS §§ PROPERTY OWNER’S ACKNOWLEDGEMENT

COUNTY OF SMITH §





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SECTION 16 GENERAL CONDITIONSGeneral Conditions of Agreement for Tyler Water Utilities (TWU) 3-Way Contracts

16.1 DEFINITIONS OF TERMS

16.1.1 AddendaWritten or graphic instrument issued prior to the opening of bid packages which clarify, correct or change the bidding requirements or contract documents.

16.1.2 AgreementThe entire AGREEMENT between the OWNER, CONTRACTOR and CITY including all contract documents.

16.1.3 Calendar DayAny day of the week or month, no days being excepted.

16.1.4 Change OrderA document recommended by the Project Designer, which is signed by the CONTRACTOR and OWNER and which authorizes an addition, deletion or revision of the Work which requires an adjustment in the contract price or contract times, issued on or after the effective date of the AGREEMENT.

16.1.5 CityThe word “CITY” in these documents shall be understood as referring to the City of Tyler, Texas, a municipal corporation acting through the City Manager or his/her designee, officers, agents or employees.

16.1.6 Contract DocumentsThe contract documents constitute the entire AGREEMENT between the OWNER, CONTRACTOR and CITY.

16.1.7 Contract PriceThe moneys payable by OWNER to CONTRACTOR for completion of the Work in accordance with the contract documents as stated in the Standard Form of Agreement.

16.1.8 Contract TimeThe number of days stated in the Standard Form of Agreement to achieve final completion so that it is ready for final payment as evidenced by the Project Designer’s written recommendation of final payment.

16.1.9 ContractorThe individual, firm, corporation, or other business entity with whom OWNER and CITY has entered into this AGREEMENT for performance of the Work (see Section 16.3, “Responsibilities of the Contractor”).

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16.1.10 Extra WorkAll work that may be required by the OWNER or CITY to be done by the CONTRACTOR to accomplish any addition, deletion or revision to the Work not originally shown on the plans, reasonably implied by the specifications or covered by the CONTRACTOR’S proposal (see Section 16.14, “Extra Work and Claims”).

16.1.11 Field OrderA written order issued by the Project Representative which orders minor changes in the Work but which does not involve a change in the contract price or contract time.

16.1.12 Final Completion (a.k.a. Complete in Full or Completed in Full)The point when the OWNER and CITY determines that all Work has been completed and final payment to CONTRACTOR will be made in accordance with the contract documents.

16.1.13 Notice to ProceedA written notice by the CITY to the CONTRACTOR fixing the date on which the contract time will commence and run and which on or before CONTRACTOR shall start to perform.

16.1.14 OwnerThe individual, firm or corporation responsible for the execution of the design and construction of the Project (see Section 16.2, “Responsibilities of the Owner”).

16.1.15 Ozone Action DayAny day between May 3 through September 30, inclusive, in which the eight (8)-hour concentration of ozone is expected to reach or exceed a target level of seventy-six (76) parts per billion (ppb), as determined by the Texas Commission on Environmental Quality (TCEQ). Notification of an Ozone Action Day will result in the implementation of the City of Tyler’s Ozone Action Plan (see Section 16.11.4, “Ozone Action Day”).

16.1.16 ProposalThe offer of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed.

16.1.17 Project DesignerThe individual, firm or corporation, including their representatives, retained by the OWNER to design and/or engineer the project. Nothing contained in the contract documents shall create any contractual or agency relationship between the Project Designer and the CONTRACTOR (see Section 16.4, “Responsibilities of the Project Designer”).

16.1.18 Project RepresentativeThe authorized representative of the CITY during the performance of the Work by the CONTRACTOR (see Section 16.5, Responsibilities of the Project Representative”).

16.1.19 Rain DayUnder a calendar day contract, a rain day is a day of normal precipitation for which no extension of time will be granted (see Section 16.12.5, “Inclement Weather”).

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16.1.20 Standard SpecificationsThe standard specifications for the CITY are the City of Tyler Standard Specifications, the latest edition in effect at time of bidding and the Texas Department of Transportation Standard Specifications for Construction of Highways, Streets and Bridges, the latest edition in effect at time of bidding except where specifically superseded in the City of Tyler Standard Specifications and/or City of Tyler Standard Details, both of which are hereby made a part of this contract by reference, unless otherwise specified, and in such force and effect as if contained at length herein.

16.1.21 Sub-ContractorAn individual, firm, corporation, or other business entity having a direct contract with the CONTRACTOR for the performance of a portion of the Work under the contract.

16.1.22 Substantial CompletionThe point when the Work has been made suitable for use or occupancy or is in a condition to serve its intended purpose, but still may require minor miscellaneous work and adjustment.

16.1.23 SupplierA manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with CONTRACTOR or with any Subcontractor to furnish materials or equipment to be incorporated into the Work by CONTRACTOR or Subcontractor.

16.1.24 Traffic EngineerThe person employed by, and named as such by, the City of Tyler or his/her designee.

16.1.25 WorkThe entire completed construction required to be furnished under the contract documents. Work includes, and is the result of furnishing, all materials, supplies, machinery, equipment, tools, superintendence, labor, services, insurance, and all water, light, power, fuel, transportation and other facilities necessary for the execution and completion of the Work covered by the contract documents. Unless otherwise specified, all materials shall be new and both workmanship and materials shall be of a good quality. The CONTRACTOR shall, if required, furnish satisfactory evidence as to the kind and quality of materials. Materials or work described in words which so applied have a well-known technical or trade meaning shall be held to refer to such recognized standards.

16.1.26 Working DayAny day not including Saturdays, Sundays or any legal holidays as designated by the City of Tyler, in which weather or other conditions, not under the control of the CONTRACTOR, will permit construction of the principal units of the Work for a period of not less than seven (7) continuous hours between 7:00 a.m. and 6:00 p.m. A "Principal Unit of Work" is hereby defined as any item of work for which there is a bid item specifically set up for payment in the contract.

16.1.27 Working HoursAll Work shall be done between 7:00 a.m. and 6:00 p.m. Monday through Friday excluding holidays unless authorized by the Project Representative. However, emergency Work may be done without prior permission. If night Work is authorized and conditions under CONTRACTOR'S control will permit Work for a continuous period of not less than seven (7)

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hours between 12:00 a.m. and 11:59 p.m. it will be considered a Working Day. Night Work may be revoked at any time by the CITY or OWNER if the CONTRACTOR fails to maintain adequate equipment and supervision for the prosecution and control of the night Work.

16.1.28 Written NoticeWritten notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by mail to the last business address known to the party by whom notice is given.

16.2 RESPONSIBILITIES OF THE OWNER

16.2.1 Collateral ContractsThe OWNER agrees to provide by separate contract or otherwise, all labor and material essential to the completion of the Work specifically excluded from this contract, in such manner as not to delay the progress of the Work, or damage said CONTRACTOR, except where such delays are specifically mentioned elsewhere in the contract documents.

16.2.2 Easements and Right-of-WayEasements and right-of-way, where required, will be provided by the OWNER.

16.3 RESPONSIBILITIES OF THE CONTRACTOR

16.3.1 Contractor's UnderstandingIt is understood and agreed that the CONTRACTOR is, after careful examination, satisfied as to the nature and location of the Work, the conformation of the ground, the character, quality and quantity of the materials to be encountered, the character of equipment and facilities needed preliminary to and during the prosecution of the Work, the general and local conditions, and all other matters which can in any way affect the Work under this contract. No verbal agreement or conversation with any officer, agent or employee of the CITY, OWNER, or Project Designer either before or after the execution of this contract shall affect or modify any of the terms or obligations herein contained.

16.3.2 Keeping Plans and Specifications AccessibleThe Project Designer shall furnish the CONTRACTOR with an adequate and reasonable number of copies of all plans and specifications without expense to the CONTRACTOR, and the CONTRACTOR shall keep a minimum of one copy of the same constantly accessible on the Work, with the latest revisions noted thereon.

16.3.3 Right of EntryThe CITY or OWNER reserves the right to enter the property or location on which the Works herein contracted for are to be constructed or installed, by such agent or agents as the CITY or OWNER may elect, for the purpose of inspecting the Work, or for the purpose of constructing or installing such collateral work as said CITY or OWNER may desire.

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16.3.4 Contractor's Duty and SuperintendenceThe CONTRACTOR shall give adequate attention to the faithful prosecution and completion of this contract and shall keep on the Work, during its progress, a competent superintendent and any necessary assistants. The superintendent shall represent the CONTRACTOR in the CONTRACTOR’S absence and all directions given to the superintendent shall be as binding as if given to the CONTRACTOR. In the absence of the superintendent from the job site, an acting-superintendent shall be appointed to be in full charge of the Work.

The CONTRACTOR is and at all times shall remain an independent contractor, solely responsible for the manner and method of completing the Work under this contract, with full power and authority to select the means, method and manner of performing such Work, so long as such methods do not adversely affect the completed improvements, with the CITY, OWNER, and Project Representative being interested only in the result obtained and conformity of such completed improvements to the plans, specifications and contract.

Likewise, the CONTRACTOR shall be solely responsible for the safety of all employees and other persons, as well as for the protection of the safety of the improvements being erected and the property of the CONTRACTOR or any other person, as a result of the operations hereunder. Engineering and/or supplemental construction drawings and specifications, as well as any additional information concerning the Work to be performed, passing from or through the Project Designer shall not be interpreted as requiring or allowing the CONTRACTOR to deviate from the plans and specifications, the intent of such drawings, specifications or any other such instructions being to define with particularity the agreement of the parties as to the Work the CONTRACTOR is to perform. The CONTRACTOR shall be fully and completely liable, at the CONTRACTOR’S own expense, for design, construction, installation and use, or non-use, of all items and methods incident to performance of the contract, and for all loss, damage or injury, including death, incident thereto, either to person or property, including, without limitation, the adequacy of all temporary supports, shoring, bracing, scaffolding, machinery or equipment, safety precautions or devices, and similar items or devices used by the CONTRACTOR during construction.

Any review of Work in process, or any visit or observation during construction, or any clarification of plans and specifications, by the CITY, OWNER or Project Designer, or any agent, employee, or representative of them, whether through personal observation on the project site or by means of approval of shop drawings for temporary construction or construction processes, or by other means or method, is agreed by the CONTRACTOR to be for the purpose of observing the extent and nature of Work completed or being performed, as measured against the drawings and specifications constituting the contract, or for the purpose of enabling the CONTRACTOR to more fully understand the plans and specifications so that the completed construction Work will conform thereto, and shall in no way relieve the CONTRACTOR from full and complete responsibility for the proper performance of the Work on the project, including but without limitation the propriety of means and methods of the CONTRACTOR in performing said contract, and the adequacy of any designs, plans or other facilities for accomplishing such performance. Deviation by the CONTRACTOR from the plans and specifications that may have been in evidence during any such visitation or observation by the CITY, OWNER or Project Designer, or any of their representatives, whether called to the CONTRACTOR'S attention or not shall in no way relieve the CONTRACTOR from the responsibility to complete all Work in accordance with said plans and specifications.

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16.3.5 Character of WorkersThe CONTRACTOR agrees to employ only orderly and competent workers, skillful in the performance of the type of work required under this contract to do the Work; and agrees that whenever the Project Representative shall inform the CONTRACTOR in writing that any worker or workers are, in the Project Representative’s opinion, incompetent or disorderly, such worker or workers shall be discharged from the Work and shall not again be employed on the Work without the Project Representative’s written consent.

16.3.6 Assignment and SubcontractingThe CONTRACTOR may assign or subcontract portions of the Work in accordance with the Instructions to Bidders. However, the CONTRACTOR shall not employ any subcontractor against whom the CITY may have a reasonable objection.

16.3.7 Subsurface ConditionsUnless otherwise noted in the plans or specifications, the OWNER has made no investigation of subsurface conditions within the project limits and makes no representation regarding the presence or absence of groundwater, unstable soils, or any other unfavorable hydrologic or geologic conditions within the project area. It shall be the CONTRACTOR’S sole responsibility to perform any investigations the CONTRACTOR deems necessary and to provide all equipment, labor, and materials needed to complete the project including, but not limited to, sheeting, shoring, bracing, pumps, and/or well pointing. The provision of all labor, equipment, and materials necessary to alleviate unfavorable subsurface conditions shall be subsidiary to the various pay items established in the proposal for furnishing and installing the Work. The CONTRACTOR shall be due no additional compensation relative to subsurface conditions.

16.3.8 Protection of Materials, Equipment and WorkThe CONTRACTOR shall be responsible for the care, preservation, conservation, and protection of all materials, supplies, machinery, equipment, tools, apparatus, accessories, facilities, all means of construction, and any and all parts of the Work, whether the CONTRACTOR has been paid, partially paid, or not paid for such Work, until the entire Work is completed and accepted.

16.3.9 Protection Against Accident to Employees and the PublicThe CONTRACTOR shall at all times exercise reasonable precautions for the safety of employees and others on or near the Work and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the Manual of Accident Prevention in Construction of the Associated General Contractors of America, except where incompatible with Federal, State, or Municipal laws or regulations. The CONTRACTOR shall provide such machinery guards, safe walkways, ladders, bridges, gangplanks, and other safety devices. The safety precautions actually taken and their adequacy shall be the sole responsibility of the CONTRACTOR, acting at the CONTRACTOR’S discretion as an independent contractor.

The right of the Project Representative to conduct construction review or observation of the CONTRACTOR’S performance or Work will not include review or observation of the adequacy of the CONTRACTOR’S safety measures in, on, or near the construction site.

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16.3.10 Shop Drawings and Other SubmittalsThe CONTRACTOR shall submit to the Project Designer, with such promptness as to cause no delay in the Work or in that of any other contractor, five (5) checked copies, unless otherwise specified, of all shop and/or setting drawings and schedules required for the work of the various trades, and the Project Designer shall pass upon them with reasonable promptness, making desired corrections. The CONTRACTOR shall make any corrections required by the Project Designer, file with the Project Designer four (4) corrected copies and furnish such other copies as may be needed. The Project Designer's approval of such drawings or schedules shall not relieve the CONTRACTOR from responsibility for deviations from drawings or specifications, unless the CONTRACTOR has, in writing, called the Project Designer's attention to such deviations at the time of submission, nor shall it relieve the CONTRACTOR from responsibility for errors of any sort in shop drawings or schedules. It shall be the CONTRACTOR’S responsibility to fully and completely review all shop drawings to ascertain their effect on the CONTRACTOR’S ability to perform the required contract Work in accordance with the plans and specifications and within the contract time.

Such review by the Project Designer shall be for the sole purpose of determining the sufficiency of said drawings or schedules to result in finished improvements in conformity with the plans and specifications, and shall not relieve the CONTRACTOR of the CONTRACTOR’S duty as an independent contractor as previously set forth, it being expressly understood and agreed that the Project Designer does not assume any duty to pass upon the propriety or adequacy of such drawings or schedules, or any means or methods reflected thereby, in relation to the safety of either person or property during CONTRACTOR’S performance hereunder.

Prior to beginning the Work, the CONTRACTOR shall submit to the CITY, a list of all valves, hydrants, pumps, and other pieces of major equipment to be installed under this contract that includes the number used, the manufacturer and model, and the location installed of each piece of equipment. If requested by the CITY, the CONTRACTOR shall also submit manufacturer's product data for each piece of equipment.

16.3.11 Water for ConstructionThe CONTRACTOR must make arrangements for water required for construction and shall furnish tank trucks, pumps, pipe, hose, water storage tanks, or whatever else the CONTRACTOR needs to secure the water and store it for use on the Work. If the CONTRACTOR desires to use CITY water from a fire hydrant, the CONTRACTOR must acquire a hydrant meter from Tyler Water Utilities. The CONTRACTOR shall furnish a proper fire hydrant wrench with a five (5)-sided socket to fit the hydrant operating nuts. Opening and closing of fire hydrants with a pipe or crescent wrench or any tool not made especially for the five (5)-sided hydrant nuts will not be permitted. The CONTRACTOR shall replace all fire hydrant caps after the CONTRACTOR’S tank truck is loaded with water. The CONTRACTOR shall not use any water from the municipal water system until the CONTRACTOR obtains a hydrant meter and prior authorization for such use from Tyler Water Utilities.

16.3.12 Contractor's BuildingsThe erection of temporary structures for use as field offices will be permitted only at such places as approved by the Project Representative and shall at all times be maintained in a manner satisfactory to the Project Representative.

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16.3.13 SanitationNecessary sanitary conveniences for the use of laborers on the Work, properly secluded from public observation, shall be constructed and maintained by the CONTRACTOR in such manner and at such points as shall be approved by the Project Representative, and their use shall be strictly enforced.

16.3.14 Protection Against ClaimsThe CONTRACTOR will indemnify, hold harmless and defend the CITY and OWNER and Project Designer from all claims arising from demand for payment of all lawful sums due based upon the provision of labor or materials in the furtherance of the performance of this contract by sub-contractors, laborers, workmen, mechanics, materialmen and furnishers of machinery and parts thereof, equipment, power tools, and all supplies, including commissary. When so desired by the CITY or OWNER, the CONTRACTOR shall furnish satisfactory evidence that all obligations of the nature herein above designated have been paid, discharged or waived.

16.3.15 Intellectual Property - Payment of Royalties and License FeesCONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others.

If a particular invention, design, process, product or device is specified in the Contract Documents for use in the performance of the Work and if to the actual knowledge of OWNER or Project Designer its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by OWNER and Project Designer in the Contract Documents.

CONTRACTOR shall indemnify, hold harmless and defend CITY, OWNER and their officers, directors, employees, Project Designer and agents of each and any of them from and against all claims, costs, losses and damages arising out of or resulting from any infringement by CONTRACTOR of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product or device not specified in the Contract Documents.

16.3.16 Compliance with Laws and OrdinancesThe CONTRACTOR shall at all times observe and comply with all Federal, State and local laws, ordinances and regulations, which in any manner affect the contract or the Work. CONTRACTOR SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND CITY AND OWNER AND PROJECT DESIGNER FROM AND AGAINST ALL CLAIMS ARISING FROM THE VIOLATION OF ANY SUCH LAWS, ORDINANCES, AND REGULATIONS BY THE CONTRACTOR OR THE CONTRACTOR’S EMPLOYEES. If the CONTRACTOR observes that the plans and specifications are at variance therewith, the CONTRACTOR shall promptly notify the Project Designer in writing, and any necessary changes shall be adjusted as provided in the contract for changes in the Work. If the CONTRACTOR performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the Project Designer, the CONTRACTOR shall bear all costs arising therefrom.

The City of Tyler is a home-rule municipality acting under its Charter adopted by the electorate pursuant to the Texas Constitution, Article 11, Section 5 and the TEX. LOC. GOV’T CODE ANN. Chapter 9. The CITY has full power of self-government under TEX. LOC. GOV’T CODE ANN. §

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51.072(a). The CITY shall retain and exercise all powers, whether express or implied, that now are, or hereafter may be, granted to municipalities by the Texas Constitution or laws of the State of Texas. The laws from which the CITY derives its powers shall be considered a part of this Contract, as if embodied herein, to the extent that such laws regulate the manner or conditions under which the CITY may enter into a Contract.

16.3.17 OSHA RequirementsThe CONTRACTOR will be required to adhere to, and all mechanical equipment and construction procedures shall conform to, all of the applicable requirements of the Federal Occupational Safety and Health Act of 1930 (OSHA) which is made a part of this contract by reference. Particular attention should be given to requirements relating to trench safety.

16.3.18 Trench Safety SystemsThe CONTRACTOR shall retain the sole responsibility for the design, fabrication, erection, and removal of trench safety systems for excavation and construction of all trenches. Trench safety systems shall be designed and installed in accordance with the City of Tyler Standard Specification for Trench Safety Systems. Prior to issuance of the Notice to Proceed the CONTRACTOR shall submit two (2) copies of a Trench Safety Plan to the CITY which shall be written documentation of the CONTRACTOR’S proposed trench safety system.

16.4 RESPONSIBILITIES OF THE PROJECT DESIGNER

16.4.1 Project Designer-Owner-City RelationshipThe Project Designer will be the OWNER’S representative during construction. The duties, responsibilities and limitations of authority of the Project Designer as the OWNER’S representative during construction are as set forth in the contract documents and shall not be extended or limited without written consent of the OWNER and Project Designer. The Project Designer will advise and consult with the CITY and OWNER, and all of the OWNER’S instructions to the CONTRACTOR shall be issued through the Project Designer. Generally, unless otherwise specifically provided in the Special Conditions, the Project Designer will perform the following functions:A. Design the project and prepare all projects plans and specifications.B. Assist in bidding, respond to pre-bid questions and requests for clarifications.C. Attend the pre-bid conference.D. Issue any necessary addenda.E. Attend pre-construction conferences, progress meetings and other job conferences as may

be required.F. Review CONTRACTOR’S initial cost breakdown with schedule of values and/or bid

schedule unit price list and recommend approval.G. Review construction progress schedule, schedule of shop drawings, and other schedules

prepared by the CONTRACTOR and determine their acceptability.H. Receive and record the date of receipt, and monitor transmission of shop drawings,

samples, and test data submitted by the CONTRACTOR, review and approve shop drawings, and transmit them back to CONTRACTOR as necessary. All such transmittal dates shall be recorded in the submittal log.

I. Respond to Requests for Information (RFI’s) and issue such written clarifications or interpretations of the contract documents which shall be consistent with or reasonably inferable from the overall intent of the contract documents. If CONTRACTOR believes

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that a written clarification or interpretation justifies an increase in the contract price or contract time, CONTRACTOR may make a claim therefor as provided in Section 16.14, “Extra Work and Claims”.

J. Verify and approve quantities of Work put in place during the preceding month, verify CONTRACTOR’S reimbursable field costs, if any, for authorized overtime, and review the CONTRACTOR’S application for payment and certify that the Work has progressed to the point indicated by the CONTRACTOR, that to the best of the knowledge, information and belief of Project Designer, based on observations and review, the Work is in accordance with the contract documents, and that the CONTRACTOR is entitled to the payment of the amount certified.

K. Correct design defects.L. Prepare all change orders and supplemental agreements in the form and manner approved

by the CITY, for authorized alterations to the Work as provided for under the contract documents. Recommend to and obtain from the CITY approval or denial of changes to the contract times or price.

M. In the event of a claim or dispute by CONTRACTOR, interpret the requirements of the contract documents and judge the acceptability of the Work thereunder.

N. Assist Project Representative in preparation of punch list items.O. Assist Project Representative with final inspection.P. Recommend to CITY and OWNER final completion.

16.4.2 Lines and GradesUnless otherwise specified in the Special Conditions, all lines and grades shall be furnished by the Project Designer or the Project Designer’s representative. Whenever necessary, construction Work shall be suspended to permit performance of this work, but such suspension will be as brief as practicable and the CONTRACTOR shall be allowed no extra compensation therefore. The CONTRACTOR shall give the Project Designer reasonable notice of the time and place where lines and grades will be needed. All stakes, marks, etc. shall be carefully preserved by the CONTRACTOR, and in case of careless destruction or removal by the CONTRACTOR or the CONTRACTOR’S employees, such stakes, marks, etc. shall be replaced at the CONTRACTOR’S expense.

16.4.3 Initial DeterminationsThe Project Designer initially shall determine all claims, disputes and other matters in question between the CONTRACTOR and the OWNER relating to the execution or progress of the Work or the interpretation of the contract documents, and the Project Designer's decision shall be rendered in writing within a reasonable time.

16.4.4 Payments for WorkThe Project Designer shall review CONTRACTOR’S applications for payment and supporting data, determine the amount owed to the CONTRACTOR and approve, in writing, payment to CONTRACTOR in such amounts; such approval of payment to CONTRACTOR constitutes a representation to the OWNER of Project Designer's professional judgment that the Work has progressed to the point indicated to the best of the Project Designer’s knowledge, information and belief, but such approval of an application for payment to CONTRACTOR shall not be deemed as a representation by Project Designer that Project Designer has made any examination to determine how or for what purpose CONTRACTOR has used the moneys paid on account of the contract price.

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16.4.5 ObjectionsIn the event the Project Designer renders any decision which, in the opinion of either party hereto, is not in accordance with the meaning and intent of this contract, either party may file with the Project Designer within thirty days their written objection to the decision.

16.5 RESPONSIBILITIES OF THE PROJECT REPRESENTATIVE

16.5.1 Project Representative-Owner-City RelationshipThe term Project Representative refers to the person or firm appointed by the CITY to be on the project site daily to oversee the construction on the CITY’S behalf. The Project Representative performs those functions of the person sometimes referred to as the “owner’s representative,” “resident engineer,” “resident project representative,” “onsite construction manager,” or the “construction administrator.” Sometimes the Project Representative will be a City employee, sometimes the Project Representative will be the same person or firm that designed the project, i.e., the Project Designer, and sometimes a different architect or engineer, but in any case, the Project Representative will represent the CITY and has only the authority granted by CITY, whether through an employment relationship or through a contract for professional services. The duties and responsibilities and the limitations of authority of the Project Representative during construction are set forth in the contract documents. Generally, unless otherwise specifically stated in the Special Conditions, the Project Representative may perform the following functions:A. Attend pre-construction conferences, progress meetings and other job conferences as may

be required.B. Provide “on-site” observation regarding conformance of the Work with the contract

documents. Observe and document Work and any delays and identify and reject defective or deficient Work. Observe and approve or reject construction materials and equipment to determine their general compliance with the contract documents.

C. Assist CONTRACTOR in acquiring materials testing laboratory and inspection services.D. Schedule, assist and accompany other City staff, the Project Designer and inspectors

representing other agencies having jurisdiction over the Project that are visiting the Work and record and report the outcome of these inspections.

E. Prepare and furnish CITY with monthly reports of the progress of the Work and of the CONTRACTOR’S compliance with the approved progress schedule.

F. Review the Project Designer’s interpretation of the contract documents for subsequent presentation to CONTRACTOR and resolve unanticipated field problems by “on-site” inspections.

G. Respond to general RFI’s for general clarification and interpretation and consult, when appropriate, with Project Designer or refer RFI to Project Designer for response.

H. Issue field orders.I. Advise the Project Designer when it is believed Work should be corrected, rejected,

uncovered for observations, or requires special tests or inspections.J. Furnish to CITY information, as required, relating to the CONTRACTOR’S claims

including documents, calculations and other information relevant to such claims together with recommendations with regard to payment of such claims.

K. Maintain orderly files for correspondence, reports or job conferences, reproductions of original contract documents including addenda, authorized alterations to the contract documents, change orders, field orders, additional drawings issued subsequent to the execution of the AGREEMENT, clarification letters, and other alterations to the contract

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documents, interpretations of the contract documents, progress reports, and other project related documents.

L. Prepare, with assistance from the Project Designer, punch list items.M. Recommend to CITY substantial completion.N. Perform final inspection with assistance from the Project Designer.O. Review CONTRACTOR’S completion documents.P. Recommend to CITY, with concurrence of the Project Designer, final completion.

16.5.2 Professional Inspection by Project RepresentativeThe Project Representative shall make periodic visits to the site to become familiar generally with the progress of the executed Work and to determine if such Work generally meets the essential performance and design features and the technical and functional engineering requirements of the contract documents; provided and except, however, that the Project Representative shall not be responsible for making any detailed, exhaustive, comprehensive or continuous on-site inspection of the quality or quantity of the Work or be in any way responsible, directly or indirectly, for the construction means, methods, techniques, sequences, quality, procedures, programs, safety precautions or lack of same incident thereto or in connection therewith. Notwithstanding any other provision of this AGREEMENT or any other contract document, the Project Representative shall not be in any way responsible or liable for any acts, errors, omissions or negligence of the CONTRACTOR, any subcontractor or any of the CONTRACTOR’S or subcontractor's agents, servants or employees or any other person, firm or corporation performing or attempting to perform any of the Work.

16.6 CONTRACT DOCUMENTS

16.6.1 Ownership of DrawingsThe CONTRACTOR, and any subcontractor or supplier or other person or organization performing or furnishing any of the Work under a direct or indirect contract with the OWNER, shall not have or acquire any title to or ownership rights in any of the drawings, specifications, or other documents, or copies of any thereof, prepared by or bearing the seal of the Project Designer or Project Designer’s consultant , and the CONTRACTOR shall not reuse any of such drawings or specifications, other documents or copies on extensions of the Work or any other project without written consent of the OWNER and Project Designer and specific verification or adaption by the Project Designer.

16.6.2 Adequacy of DesignIt is understood that the OWNER believes it has employed competent engineers, architects and designers. It is, therefore, agreed that the OWNER shall be responsible for the adequacy of the design, sufficiency of the contract documents, the safety of the structure and the practicability of the operations of the completed project; provided the CONTRACTOR has complied with the requirements of the said contract documents, all approved modifications thereof, and additions and alterations thereto approved in writing by the OWNER. The burden of proof of such compliance shall be upon the CONTRACTOR to show that the CONTRACTOR has complied with the said requirements of the contract documents, all approved modifications thereof and all approved additions and alterations thereto.

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16.6.3 SpecificationsTitles to divisions and paragraphs in the specifications are introduced merely for convenience and are not to be taken as a correct or complete segregation of the several units of material and labor. No responsibility, either direct or implied, is assumed by the Project Designer for omissions or duplications by the CONTRACTOR or Subcontractors, due to real or alleged error in arrangement of matter in the specifications.

16.6.4 Discrepancies and OmissionsIt is the intent of this contract that all Work must be done and all material must be furnished in accordance with the generally accepted practice, and in the event of any discrepancies between the separate contract documents, the priority of interpretation defined in the Standard Form of Agreement shall govern. In the event that there is still any doubt as to the meaning and intent of any portion of the contract, specifications or drawings, the Project Designer shall define which is intended to apply to the Work.

16.7 BONDS

16.7.1 GeneralThe CONTRACTOR is required, pursuant to TEX. GOV’T CODE ANN. § 2253.021, and/or the Standard Form of Agreement to execute all bonds before commencing the work. The contract shall not be in effect until CONTRACTOR executes the AGREEMENT and files with the CITY a good and sufficient Statutory Performance and Maintenance Bond and Payment Bond (when applicable) or Payment Bond in the amount equal to one hundred percent (100%) of the total amount of the contract. Such bonds are furnished by the CONTRACTOR and approved by the CITY.

Within fifteen (15) calendar days after written notification of the award of the contract, the CONTRACTOR shall submit Statutory Performance and Maintenance Bond and Payment Bonds (when applicable) or Payment Bond to CITY on standard forms as required by the Standard Form of Agreement.

Sureties may not be accepted who are now in default or delinquent on any bonds or who are interested in any litigation against the CITY. All bonds must be made on standard forms and must be executed by an approved surety company authorized to do business in the State of Texas and registered by the State Board of Insurance to conduct business in the State of Texas and acceptable according to the most recent list of the companies holding Certificates of Authority from the Secretary of the Treasury of the United States, shown on the Treasury List. Each bond must be executed by the CONTRACTOR and the sureties.

Should any surety on the contract be determined unsatisfactory at any time by the City Council, notice will be given to the CONTRACTOR to that effect, and the CONTRACTOR must provide a new surety satisfactory to the CITY within fifteen (15) calendar days. Payments may be withheld until the new surety or sureties, as required, have qualified and been accepted by the CITY.

16.7.2 Performance BondThe performance bond guarantees the CITY that the CONTRACTOR will fully and faithfully

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execute the Work and performance of the AGREEMENT according to its terms including price and time and is solely for the protection of the CITY in the amount of the contract and conditioned on the faithful performance of the work in accordance with the plans, specifications, and contract documents. Pursuant to TEX. GOV’T CODE ANN. § 2253.021 and the Standard Form of Agreement a performance bond is required when the contract amount is in excess of one hundred thousand dollars ($100,000).

16.7.3 Maintenance BondThe maintenance bond guarantees the CITY that the CONTRACTOR will guarantee the Work against faulty workmanship and/or materials for a specified period of time following completion of the AGREEMENT. Pursuant to CITY policy and the Standard Form of Agreement a maintenance bond shall accompany the performance bond for a maintenance period of one (1) year after the date of final acceptance of the Work.

16.7.4 Payment BondThe payment bond guarantees the CITY that the CONTRACTOR shall pay all bills for materials and labor for work provided for in said AGREEMENT and is solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the prime contractor or a subcontractor to supply public work, labor or material and in the amount of the contract. Pursuant to TEX. GOV’T CODE ANN. § 2253.021 for contracts in excess of $25,000 a payment bond is required; however, pursuant to CITY Policy and the Standard Form of Agreement a payment bond shall be required for ALL projects regardless of value.

16.8 INSURANCE REQUIRED

16.8.1 Contractor Shall Maintain InsuranceCONTRACTOR agrees, at its sole expense, to maintain on a primary basis during the life of this Contract and the performance of Work hereunder, insurance coverage, limits, and endorsements unless otherwise noted herein. Insurance required by this contract for the CITY as additional insured shall be primary insurance and not contributing with any other insurance available to CITY.

CONTRACTOR agrees to provide evidence of the following coverage’s at execution of contract: Commercial General Liability, Business Auto Liability, Contractor’s Professional Errors & Omissions Liability if required by a City Operational

Department, Inland Marine Builder’s Risk Insurance if required by a City Operational Department, Contractor’s Pollution Liability Insurance if required by a City Operational Department, Commercial Umbrella / Excess Liability, and Worker’s Compensation and Employer’s Liability

In the event the CONTRACTOR performs any site work, other than testing, then all the insurance required herein will need to be evidenced prior to commencement of said site work.

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16.8.2 Insurance Requirements shall not limit Contractor’s Liabilities and ObligationsThe CONTRACTOR agrees the insurance requirements herein as well as CITY’S review or acknowledgement, is not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by the CONTRACTOR under this AGREEMENT.

16.8.3 Commercial General LiabilityCONTRACTOR agrees to maintain Commercial General Liability at a limit of liability not less than one million ($1,000,000) Each Occurrence, two million ($2,000,000) General Aggregate per project. CONTRACTOR agrees its coverage will not contain any restrictive endorsement(s) excluding or limiting Products - Completed Operations, Independent Contractors, Broad Form Property Damage, X-C-U Coverage (X = Explosion Hazard; C = Collapse Hazard; U = Underground Damage), Contractual Liability or Cross Liability. The CONTRACTOR agrees any Self-Insured-Retention or deductible shall not exceed twenty-five thousand ($25,000).

16.8.4 Business Automobile LiabilityCONTRACTOR agrees to maintain Business Automobile Liability at a limit of liability not less than one million ($1,000,000) Each Occurrence. Coverage shall include bodily injury and property damage liability arising out of the operation, maintenance and use of Any Auto, or All Owned Autos, and Hired Autos, and Non-Owned automobiles. In the event CONTRACTOR does not own automobiles, CONTRACTOR agrees to maintain coverage for Hired & Non-Owned Auto Liability, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Business Auto Liability policy.

16.8.5 Contractor’s Professional Errors & Omissions LiabilityIf a City Operational Department requires Professional Errors & Omissions Liability coverage, the CONTRACTOR agrees to maintain CONTRACTOR’S Professional Error’s & Omissions Liability at a limit of liability not less than one million ($1,000,000) Each Occurrence, two million ($2,000,000) General Aggregate. The CONTRACTOR agrees the policy shall include a minimum three (3) year Discovery (tail) reporting period, and a Retroactive Date that equals or precedes the effective date of the AGREEMENT, or the performance of services hereunder. The CONTRACTOR agrees the Self-Insured-Retention shall not exceed twenty-five thousand ($25,000). This coverage may be provided on a Per-Project Basis.

16.8.6 Inland Marine Builder’s Risk InsuranceIf a City Operational Department requires Inland Marine Builder’s Risk coverage, the CONTRACTOR, prior to notice to proceed or commencement of Work, whichever occurs first, agrees to maintain an Inland Marine Builder’s Risk insurance coverage form with an amended policy period of no less than twenty-two (22) months or estimated project length whichever is longer, if available, providing coverage to protect the interests of the CITY, CONTRACTOR, sub-contractors, including property acquired under a sales tax incentive program, property in transit, and property on or off-premises, which shall become part of the Work.

Coverage shall be written on an All-Risk, Replacement Cost, and Completed Value Form basis in an amount at least equal to one-hundred percent (100%) of the projected completed value of the Work, as well as subsequent modifications of that sum due to Change Orders. This policy shall also include Delay Cost coverage for soft costs, which shall at a minimum include additional expenses for interest, legal, consulting, insurance, architectural and engineering, CONTRACTOR’S overhead and general conditions, and equipment rental. The period of

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indemnity shall not be less than twelve (12) months and the limit of Delay Cost coverage not be less than ten percent (10%) of the projected completed value of the Work and shall be a scheduled limit on the policy in addition to a scheduled limit for the hard cost coverage. The waiting period for Delay Cost coverage may not exceed thirty (30) days. Collectively, the scheduled soft cost limit and hard cost limit may equal one-hundred percent (100%) of the projected value of the Work, unless the builder’s risk carrier requires the Delay Cost coverage to be in addition to the one hundred percent (100%) projected value of the Work. CONTRACTOR agrees to be responsible for reporting increases in the projected completed value of the Work due to Change Orders to its insurance carrier.

The CONTRACTOR further agrees that any flat deductible(s) shall not exceed one hundred thousand ($100,000), any wind percentage deductible (when applicable) shall not exceed ten-percent (10%); and any flood sublimit shall not be less than twenty-five percent (25%) of the projected completed value of the Work for this policy.

The CONTRACTOR agrees to endorse the Inland Marine Builder’s Risk insurance with a manuscript endorsement eliminating the automatic termination of coverage in the event the building is occupied in whole or in part, or put to its intended use, or partially accepted by CITY. The manuscript endorsement shall amend the automatic termination clause to only terminate coverage if the policy expires, is cancelled, the CITY’S interest in the building ceases, or the building is accepted or insured by the CITY.

The CONTRACTOR agrees to endorse the CITY as “Additional Insured” on the Inland Marine Builder’s Risk Insurance coverage form.

16.8.7 Contractor’s Pollution LiabilityIf a City Operational Department requires Contractor’s Pollution Liability coverage, the CONTRACTOR agrees to maintain Contractor’s Pollution Liability at a limit of liability not less than one million ($1,000,000) Each Occurrence, two million ($2,000,000) General Aggregate.

16.8.8 Commercial Umbrella/Excess LiabilityCONTRACTOR agrees to maintain either a Commercial Umbrella or Excess Liability at a limit of liability not less than five million ($5,000,000) Each Occurrence, five million ($5,000,000) General Aggregate. The CONTRACTOR agrees to endorse the CITY as an “Additional Insured” on the Commercial Umbrella/Excess Liability, unless the Commercial Umbrella/Excess Liability provides coverage on a pure/true follow-form basis, or the CITY is automatically defined as an Additional Protected Person. The CONTRACTOR agrees any Self-Insured-Retention or deductible shall not exceed twenty-five thousand ($25,000).

16.8.9 Additional Insured Endorsements

The CONTRACTOR agrees to endorse the CITY as an “Additional Insured” on the Commercial General Liability. All endorsements shall be in the form required or shall be a similar endorsement providing equal or broader additional insured coverage. All pages of the endorsements shall be attached. The form of the endorsement(s) shall be:

Option 1:

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CG 20 10 10 01 Additional Insured - Owners, Lessees, or Contractors – Scheduled Person or Organization.

AND, the additional endorsement of

CG 20 37 07 04 Additional Insured – Owners, Lessees, or Contractors – Completed Operations shall be required to provide back coverage for the CONTRACTOR’S “your work” as defined in the policy and liability arising out of the products-completed operations hazard.

Option 2:

CG 20 10 07 04 Additional Insured - Owners, Lessees, or Contractors – Scheduled Person or Organization.

AND, the additional endorsement of

CG 20 37 07 04 Additional Insured – Owners, Lessees, or Contractors – Completed Operationsshall be required to provide back coverage for the CONTRACTOR’S “your work” as defined in the policy and liability arising out of the products-completed operations hazard.

CONTRACTOR shall attach actual copies of the endorsements.

Additionally, CONTRACTOR agrees to endorse the CITY as an “Additional Insured” under the Commercial Umbrella / Excess Liability and the Inland Marine Builders Risk Insurance, if required, as also provided herein.

The name of the organization endorsed as Additional Insured for all endorsements shall read “City of Tyler.”

16.8.10 Deductibles, Coinsurance Penalties & Self-Insured RetentionCONTRACTOR agrees to be fully and solely responsible for any costs or expenses as a result of a coverage deductible, coinsurance penalty, or self-insured retention; including any loss not covered because of the operation of such deductible, coinsurance penalty, self-insured retention, or coverage exclusion or limitation. For deductible amounts that exceed the amounts stated herein that are acceptable to CITY, the CONTRACTOR agrees, when requested by CITY, to maintain a Commercial Surety Bond in an amount equal to said deductible amount.

16.8.11 Waiver of SubrogationCONTRACTOR agrees by entering into this written AGREEMENT to a Waiver of Subrogation in favor of the CITY, CONTRACTOR, sub-Contractor, architects, or engineers for each required policy providing coverage during the life of this AGREEMENT. CONTRACTOR

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agrees to notify the insurer and request the policy be endorsed with a Waiver of Transfer of Rights of Recovery Against Others, or an equivalent endorsement and provide such endorsement to CITY. This Waiver of Subrogation requirement shall not apply to any policy, which includes a condition that specifically prohibits such an endorsement, or voids coverage should the CONTRACTOR enter into such an agreement on a pre-loss basis.

16.8.12 Right to Revise or RejectCONTRACTOR agrees the CITY reserves the right, but not the obligation, to review or revise any insurance requirement, not limited to limits, coverage and endorsements based on insurance market conditions affecting the availability or affordability of coverage; or changes in the scope of work / specifications affecting the applicability of coverage.

Insurance required herein shall be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Texas. All policies shall be subject to examination and approval by the City Attorney's Office in the CITY’S Legal Department for their adequacy as to form, content, form of protection, and providing company. Additionally, the CITY reserves the right, but not the obligation, to review and reject any insurance policies failing to meet the criteria stated herein, or any insurer(s) providing coverage due of its poor financial condition or failure to operate legally in the State of Texas. In such events, CITY shall provide CONTRACTOR written notice of such revisions or rejections.

16.8.13 No Representation of Coverage AdequacyThe coverage, limits or endorsements required herein protect the primary interests of the CITY, and the CONTRACTOR agrees in no way should these coverage, limits or endorsements required be relied upon when assessing the extent or determining appropriate types and limits of coverage to protect the CONTRACTOR against any loss exposures, whether as a result of the Project or otherwise.

16.8.14 Certificate of InsuranceCONTRACTOR agrees to provide CITY with Certificate(s) of Insurance that clearly evidence the CONTRACTOR’S insurance contains the minimum coverages, limits, and endorsements set forth herein. A minimum thirty (30) day endeavor to notify due to cancellation or non-renewal of coverage shall be identified on each Certificate(s) of Insurance. In the event the CITY is notified that a required insurance coverage will cancel or expire during the period of this AGREEMENT, the CONTRACTOR agrees to furnish CITY prior to the expiration of such insurance, a new Certificate of Insurance evidencing replacement coverage. When notified by CITY, the CONTRACTOR agrees to not continue Work pursuant to this AGREEMENT, unless all required insurance remains in effect.

The CITY shall have the right, but not the obligation, of prohibiting CONTRACTOR from entering the Work site until a new Certificate of Insurance is provided to the CITY evidencing the replacement coverage. The CONTRACTOR agrees the CITY reserves the right to withhold payment to CONTRACTOR until evidence of reinstated or replacement coverage is provided to the CITY. If the CONTRACTOR fails to maintain the insurance as set forth herein, the CONTRACTOR agrees the CITY shall have the right, but not the obligation, to purchase replacement insurance, which the CONTRACTOR agrees to reimburse any premiums or expenses incurred by the CITY.

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16.8.15 Workers’ Compensation & Employer’s Liability

A. The CONTRACTOR agrees to maintain its own Workers’ Compensation Insurance pursuant to statutory limits. See TEX. LAB. CODE ANN. Title 5, Subtitle A, Chapter 401; TEX. ADMIN CODE, Title 28, Part 2. (NOTE: Elective exemptions or coverage through an employee leasing arrangement will NOT satisfy this requirement).

B. The CONTRACTOR agrees to maintain its own Employer’s Liability Insurance at a limit of liability not less than one million $1,000,000 Bodily Injury by Accident, one million $1,000,000 Bodily Injury by Disease Each Occurrence, one million $1,000,000 Bodily Injury by Disease Aggregate Limit.

C. Definitions:(1) Certificate of coverage (certificate) - A copy of a certificate of insurance, a

certificate of authority to self-insure issued by the commission, or a workers' compensation coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project.

(2) Duration of the project - includes the time from the beginning of work on the project until the contractor’s/person’s work on the project has been completed and accepted by the governmental entity.

(3) Persons providing services on the project ('subcontractor' in § TEX. LAB. CODE ANN. § 406.096 ) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes without limitation independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. “Services” without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. “Services” does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets.

D. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements which meets the statutory requirements of TEX. LAB. CODE ANN. § 401.011(44).

E. The contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract.

F. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended.

G. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity:

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http://web2.westlaw.com/find/default.wl?ordoc=7759067&rp=%2Ffind%2Fdefault.wl&DB=1000301&DocName=TXLBS406.096&FindType=L&AP=&rs=WLW9.06&ifm=NotSet&fn=_top&sv=Split&mt=Texas&utid=2&vr=2.0&pbc=FFFFBE7D

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(1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and

(2) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project.

H. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter.

I. The contractor shall notify the CITY in writing by certified mail or personal delivery, within ten (10) days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project.

J. The contractor shall post a notice on each project site informing all persons providing services on the project that they are required to be covered, and stating how a person may verify current coverage and report failure to provide coverage. This notice does not satisfy other posting requirements imposed by the Act or other commission rules. This notice must be printed with a title in at least 30 point bold type and text in at least 19 point normal type, and shall be in both English and Spanish and any other language common to the worker population. The text for the notices shall be in the text, form and manner prescribed by the Texas Workers' Compensation Commission, as shown in Exhibit 1, without any additional words or changes.

K. The contractor shall contractually require each person with whom it contracts to provide services on a project, to:(1) provide coverage, based on proper reporting of classification codes and payroll

amounts and filing of any coverage agreements, which meets the statutory requirements of TEX. LAB. CODE ANN. § 401.011(44) for all of its employees providing services on the project, for the duration of the project;

(2) provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project;

(3) include in all contracts to provide services on the project the language in subsection J of this section;

(4) provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project;

(5) obtain from each other person with whom it contracts, and provide to the contractor:(a) a certificate of coverage, prior to the other person beginning work on the

project; and(b) prior to the end of the coverage period, a new certificate of coverage

showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project;

(6) retain all required certificates of coverage on file for the duration of the project and for one year thereafter;

(7) notify the CITY in writing by certified mail or personal delivery, within ten (10) days after the person knew or should have known, of any change that materially

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affects the provision of coverage of any person providing services on the project; and

(8) contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (8) of this subsection, with the certificates of coverage to be provided to the person for whom they are providing services.

L. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor and the person signing this contract is representing to the CITY that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions.

M. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the CITY to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the CITY.

EXHIBIT 1REQUIRED WORKERS' COMPENSATION COVERAGE

"The law requires that each person working on this site or providing services related to this construction project must be covered by workers' compensation insurance. This includes persons providing, hauling, or delivering equipment or materials, or providing labor or transportation or other service related to the project, regardless of the identity of their employer or status as an employee."

"Call the Texas Workers' Compensation Commission at 512-440-3789 to receive information on the legal requirement for coverage, to verify whether your employer has provided the required coverage, or to report an employer's failure to provide coverage."

N. A person providing services on a project, other than a contractor, shall:(1) provide coverage for its employees providing services on a project, for the

duration of the project based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements which meets the statutory requirements of TEX. LAB. CODE ANN. §401.011(44);

(2) provide a certificate of coverage as required by its contract to provide services on the project, prior to beginning work on the project;

(3) have the following language in its contract to provide services on the project: 'By signing this contract or providing or causing to be provided a certificate of coverage, the person signing this contract is representing to the CITY that all employees of the person signing this contract who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or

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misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions.

(4) provide the person for whom it is providing services on the project, prior to the end of the coverage period shown on its current certificate of coverage, a new certificate showing extension of coverage, if the coverage period shown on the certificate of coverage ends during the duration of the project;

(5) obtain from each person providing services on a project under contract to it, and provide as required by its contract:(a) a certificate of coverage, prior to the other person beginning work on the

project; and(b) prior to the end of the coverage period, a new certificate of coverage

showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project;

(6) retain all required certificates of coverage on file for the duration of the project and for one year thereafter;

(7) notify the CITY in writing by certified mail or personal delivery, of any change that materially affects the provision of coverage of any person providing services on the project and send the notice within ten days after the person knew or should have known of the change; and

(8) contractually require each other person with whom it contracts to:(a) provide coverage based on proper reporting of classification codes and

payroll amounts and filing of any coverage agreements for all of its employees providing services on the project, for the duration of the project;

(b) provide a certificate of coverage to it prior to that other person beginning work on the project;

(c) include in all contracts to provide services on the project the language in paragraph (3) of this subsection;

(d) provide, prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project;

(e) obtain from each other person under contract to it to provide services on the project, and provide as required by its contract:(i) a certificate of coverage, prior to the other person beginning work

on the project; and(ii) prior to the end of the coverage period, a new certificate of

coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the contract;

(f) retain all required certificates of coverage on file for the duration of the project and for one year thereafter;

(g) notify the CITY in writing by certified mail or personal delivery, within ten days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and

(h) contractually require each person with whom it contracts, to perform as required by this subparagraph and subparagraphs (a)-(g) of this paragraph,

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with the certificate of coverage to be provided to the person for whom they are providing services.

O. The failure of a person providing services on a project to comply with any of these provisions is a breach of contract by the person providing services on a project which entitles the CITY to declare the contract void if the person providing services on a project does not remedy the breach within ten (10) days after receipt of notice of breach from the CITY.

16.9 QUALITY OF MATERIALS AND WORKMANSHIP

16.9.1 Materials Approved for WorkNo materials which have been used by the CONTRACTOR for any temporary purpose whatsoever are to be incorporated in the permanent structure without written consent of the Project Designer. All materials to be used shall be new.

Unless otherwise stated, where materials or equipment are specified by a trade or brand name, it is not the intention of the CITY to discriminate against an equal product of another manufacturer, but rather to set a definite standard of quality or performance, and to establish an equal basis for the evaluation of bids. Where the words "or approved equal", “or accepted equal” or other such expressions are used, they shall be understood to mean that the thing referred to shall be the equivalent of or equal to some other thing, in the opinion or judgment of the Project Designer. Unless otherwise specified, all materials shall be the best of their respective kinds and shall be in all cases fully equal to approved samples. Notwithstanding that the words "or approved equal", “or accepted equal” or other such expressions may be used in the specifications in connection with a material, manufactured article or process, the material, article or process specifically designated shall be used, unless a substitute shall be approved in writing by the Project Designer, and the Project Designer shall have the right to require the use of such specifically designated material, article, or process.

16.9.2 Testing of MaterialsTesting of all materials to be incorporated into the project will be made as directed by the Project Designer or CITY at the expense of the OWNER through the collection of an up-front testing fee at time of permitting. All retesting will be at the expense of the CONTRACTOR. The testing laboratory will be designated by the CITY and all materials must meet the specification requirements. For materials furnished by a manufacturer such as reinforcing steel, expansion joint materials, concrete, pipe, miscellaneous steel, cast iron materials, etc., the CONTRACTOR may be required to furnish a manufacturer's certificate that the material meets the requirements specified for this project.

All testing performed by the CITY shall be for quality assurance purposes only and shall not constitute any part of the CONTRACTOR’S quality control program.

16.9.3 Defects and Their RemediesThe Project Representative shall not have the power to waive the obligations of this contract for the furnishing by the CONTRACTOR of good material, and of the CONTRACTOR performing good Work as herein described, and in full accordance with the plans and specifications. If the Work or any part thereof, or any material brought on the site of the Work

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for use in the Work or selected for the same, shall be deemed by the Project Representative as unsuitable or not in conformity with the specifications, the CONTRACTOR shall, after receipt of written notice thereof from the Project Representative, forthwith remove such material and rebuild or otherwise remedy such Work so that it shall be in full accordance with this contract.

No failure or omission of the Project Representative to discover, object to or condemn any defective Work or material shall release the CONTRACTOR from the obligations to fully and properly perform the contract, including without limitations, the obligation to at once tear out, remove and properly replace the same at any time prior to final acceptance upon the discovery of said defective Work or material; provided, however, that the Project Representative shall, upon request of the CONTRACTOR, inspect and accept or reject any material furnished.

Any questioned Work may be ordered taken up or removed for re-examination by the Project Representative prior to final acceptance, and if found not in accordance with the specifications for said Work, all expense of removing, re-examination and replacement shall be borne by the CONTRACTOR, otherwise the expense thus incurred shall be allowed as provided for in Section 16.14, “Extra Work and Claims”, and shall be paid for by the OWNER; provided that, where inspection or approval is specifically required by the specifications prior to performance of certain Work, should the CONTRACTOR proceed with such Work without requesting prior inspection or approval, the CONTRACTOR shall bear all expense of taking up, removing, and replacing this Work if so directed by the Project Representative.

16.9.4 GuaranteeThe CONTRACTOR shall guarantee the materials furnished and the installation performed for a period of one (1) year of operation after the date of final acceptance by the CITY.

In the event a defect is found during the guarantee period, the CONTRACTOR will be notified and shall immediately repair the defect, furnishing and installing all materials necessary. The repair shall be executed in a manner satisfactory to the CITY. Should the CONTRACTOR proceed with such repairs without requesting prior inspection or approval, the CONTRACTOR shall bear all expense of taking up, removing, and replacing this Work if so directed by the Project Representative.

The CONTRACTOR is to perform any repair immediately when notified by the CITY or OWNER without question or delay because of any doubt as to the probable cause of the defect, regardless of whether the repair is covered by the guarantee. In the event that the defect corrected by the CONTRACTOR should be found to be caused by some event or disturbance which occurred after the date of the final acceptance, the responsible party will pay the CONTRACTOR for the time and materials used in the repair in accordance with the terms of Section 16.14, “Extra Work and Claims”. If the defect necessitating the repair was not found to be caused by a disturbance occurring after the date of the final acceptance, the CONTRACTOR shall furnish all labor, equipment, tools, and materials necessary for the repair without any additional payment.

In the event the defect creates an emergency, or if the CONTRACTOR fails to begin repair work within a reasonable length of time according to the nature of the defect, the CITY reserves the right to perform the repair work by other means. In this event, if the defect is found to be covered by the guarantee, the CONTRACTOR shall then pay the CITY for the equipment, time, labor, and materials used in accordance with the method of calculating payment for Extra Work as set out in Section 16.14, “Extra Work and Claims”.

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The period of the guarantee shall be one (1) year of satisfactory service from the date of final acceptance of the Work by the CITY. In the event it is necessary to take the improvements out of service because of defective materials or workmanship, the period of guarantee shall be extended until the improvements have been in continuous service for a period of one (1) year.

16.10 MAINTENANCE OF SITE

16.10.1 Protection of Adjoining PropertyThe CONTRACTOR shall take proper means to protect the adjacent or adjoining property or properties in any way encountered, which might be injured or seriously affected by any process of construction to be undertaken under this AGREEMENT, from any damage or injury by reason of said process of construction; and the CONTRACTOR shall be liable for any and all claims for such damage on account of the CONTRACTOR’S failure to fully protect all adjoining property. The CONTRACTOR agrees to indemnify, hold harmless and defend the CITY and the OWNER and Project Designer from and against all claims for property damages to any adjacent or adjoining real property, arising or growing out of the performance of the contract, to the extent that such damage was caused by the negligent or intentional acts or omissions of CONTRACTOR.

The CONTRACTOR shall repair all fences, concrete walls, concrete sidewalks, concrete curbs, gravel, asphalt and concrete driveways, signs, culverts, and all other miscellaneous improvements, unless otherwise specified by bid item in the Proposal or Special Conditions, at no additional expense to the CITY or OWNER, damaged by the CONTRACTOR due to the Work on the project, to a condition equal to or better than their condition before construction.

16.10.2 Driveways and Property AccessThe CONTRACTOR shall keep all driveways and parking areas to properties adjacent to the site of Work open at all times except for the minimum practical time required to install the Work. The timing for pavement cuts shall be coordinated with the Project Representative in advance of pavement cuts in order to assure that property owners and persons using public roadways are inconvenienced as little as possible and that access to private property is maintained at all times. In addition to other methods for maintaining property access as described elsewhere in the specifications, the CONTRACTOR shall either backfill all trenches at the end of the day and place a temporary oil sand surface over streets or driveways, or provide a steel traffic plate of sufficient size and thickness to safely bridge open trenches and allow vehicular access on streets or driveways.

The provision of this equipment and its subsequent maintenance and use shall be subsidiary to the various pay items established in the Proposal for furnishing and installing the Work. The provision and use of the steel traffic plate shall not relieve the CONTRACTOR from the obligation to backfill the trench and provide temporary gravel patching in paved areas as quickly as practical per the requirements in the Technical Specifications.

16.10.3 Traffic ControlThe safety of the public and the convenience of traffic shall be regarded as of prime importance. Unless otherwise directed, all portions of the streets in this project shall be kept open to traffic. It shall be the responsibility of the CONTRACTOR to ensure that two-way traffic (minimum 22'

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wide) on an all-weather surface may safely bypass the construction site and that access is provided to abutting private property. An all-weather surface shall be of a material and depth as defined in the City of Tyler Unified Development Code and approved by the Project Representative.

The CONTRACTOR shall plan and execute all Work in a manner that will cause the minimum interference with traffic. The CONTRACTOR shall place, and maintain in good condition, standard barricades at each end of the project and at other locations where traffic is rerouted or blocked from using regular traffic lanes. Where the work on this project creates a safety hazard to the general public, the CONTRACTOR shall furnish and erect sufficient barricades and warning signs to warn the public of the danger. The CONTRACTOR shall also provide sufficient flares or other emergency lighting to warn the public at night. Barricades, signs, and traffic handling shall be in accordance with the Texas Manual on Uniform Traffic Control Devices (TMUTCD), the latest edition in effect at time of bidding, as adopted by the Texas Department of Transportation (TxDOT).

It shall be the responsibility of the CONTRACTOR to furnish, install, and maintain barricades, traffic control devices, signs, and flashers of the size and type specified at locations as shown in the approved traffic control plan throughout the limits of this project from the date of notice to proceed until final acceptance. When directed by the CITY, the CONTRACTOR shall do the necessary cleanup and finishing immediately after all or a portion of the pavement has been placed, as to allow the CITY to provide adequate traffic control to those portions of the completed roadway which will be open to traffic.

Unless specifically provided for under a bid item, barricades, signs and traffic handling shall be furnished, installed, and maintained at the CONTRACTOR’S expense.

In case the CONTRACTOR fails to provide ingress and egress to private property and/or maintain the proper barricades, signs, and flashers, the OWNER may provide these services and deduct the cost thereof, including overtime and administrative expenses, from all payments thereafter due the CONTRACTOR.

The CONTRACTOR shall notify the Project Representative and Traffic Engineer, at least four (4) days (excluding Saturdays, Sundays, and holidays) in advance of beginning the proposed Work, of the CONTRACTOR’S intention to close or partially block the street or any part thereof, or of any construction affecting the free flow of traffic.

Should the CONTRACTOR, during the Work, reduce an existing two-way roadway to less than twenty-two (22) feet, the CONTRACTOR shall provide flagmen and route traffic through the construction area one lane at a time.

A flagman will be required at any time it is necessary for the CONTRACTOR’S equipment to move into or across an open traffic lane or at other such times as directed by the Project Representative. A flagman shall be utilized to aid the exit of hauling equipment from open traffic lanes to the work area, and the entry of hauling equipment from the work area to open traffic lanes.

The CONTRACTOR shall not remove and/or relocate any regulatory traffic control devices. The Traffic Engineer will be responsible for the removal and/or relocation of all regulatory traffic control devices. Detour routes, as required, will be approved by the Traffic Engineer. The

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Traffic Engineer will be responsible for the installation of any regulatory traffic control devices that may be required due to the construction of detour routes, excluding warning signs and required warning lights attached thereto.

16.10.4 Erosion Control PlanThe CONTRACTOR will sequence construction and proceed in a manner that will minimize erosion. The CONTRACTOR will be responsible for installing and maintaining adequate erosion control mechanisms. The CONTRACTOR shall submit an erosion control plan at the scheduled Pre-Construction Conference, if requested by the CITY. Erosion control measures shall be in place prior to beginning earth work activities. Unless otherwise noted, there will be no bid item for the payment of this Work.

16.10.5 Protection of Survey MonumentsThe CONTRACTOR shall exercise care to preserve and not disturb existing survey monuments and property corner markers.

16.10.6 Manhole, Clean-Out, and Water Valve LocationsWhen a CONTRACTOR installs or lowers existing manholes, clean-outs, and water valves, it is the CONTRACTOR’S responsibility to establish the correct location of these appurtenances for future raising to grade. Any additional work needed to locate these appurtenances will be at the CONTRACTOR’S expense.

16.10.7 Water SprinklersAll lawn water sprinkler systems damaged by the CONTRACTOR, whether on private property or in the public right of way, shall be repaired at the CONTRACTOR’S expense.

16.10.8 Existing MailboxesUnless otherwise noted in the plans and specifications, existing mailboxes along the project site will be removed and relocated as necessary by the CONTRACTOR. The CONTRACTOR must provide daily access to the mailboxes for the delivery of mail by letter carriers. Unless otherwise noted, there will be no bid item for the payment of this Work.

16.11 GENERAL PROVISIONS

16.11.1 DamagesIn the event the CITY and/or OWNER is damaged in the course of the Work by the act, negligence, omission, mistake or default of the CONTRACTOR, or should the CONTRACTOR unreasonably delay the progress of the work being done by others on the job so as to cause loss for which the CITY and/or OWNER becomes liable, then the CONTRACTOR shall reimburse the CITY and/or OWNER for such loss.

16.11.2 Losses From Natural CausesUnless otherwise specified, all loss or damage to the CONTRACTOR arising out of the nature of the Work to be done, or from the action of the elements, or from any unforeseen circumstance in the prosecution of the same, or from unusual obstructions or difficulties which may be encountered in the prosecution of the Work, shall be sustained and borne by the CONTRACTOR at the CONTRACTOR’S own cost and expense.

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16.11.3 Public UtilitiesAll utility adjustments necessary for the completion of the Work in this contract will be made by the owners of the affected utilities, provided said utilities are not made a part of the scope of this project and incorporated within the limits of this project as may be designated by bid items within the Proposal. The CONTRACTOR shall use the utmost care to preserve and prevent damage to existing utilities. If at any time the CONTRACTOR damages the utilities in place through negligence or carelessness, the CONTRACTOR shall pay for the full cost of repairing such damages. Underground utilities shown on these plans are drawn based on records, surface evidence, excavations at certain locations, and best recollection. The CONTRACTOR is responsible for carefully locating each underground utility prior to start of construction.

16.11.4 Ozone Action DayThe City of Tyler has adopted Ozone Action Day guidelines to be used on days designated as Ozone Actions Days. All outside CONTRACTORS will be required to adhere to these guidelines. Local television stations will advise of an “Ozone Action Day” and the CITY will announce the action day over the local government access channel the day prior to an action day. In addition, the CONTRACTOR may also be notified of an Ozone Action Day by the Project Representative.

On Ozone Action Days, the Project Representative will work with the CONTRACTOR to reduce ozone producing precursors by implementing the CITY’S Ozone Action Plan. This plan shall include, but not be limited to:A. Consider work schedules that will reduce equipment and vehicle usage in the morning

hours during the normal ozone producing season of May through September.B. Delay fueling of vehicles until the advisory is over. If fueling is necessary, do so in the

late afternoon or early evening. Avoid overfilling the tank and allowing fuel to spill onto the ground. Limit vehicle trips as much as possible. Coordinate activities to avoid duplication of trips. If possible, schedule trips for afternoons.

C. Avoid idling vehicles unnecessarily. Limit use of weed eaters, tractors, lawnmowers, and power tools. Ensure that all vehicles and equipment are tuned and maintained according to manufacturer’s tune-up and emissions control standards.

D. Schedule the use of heavy equipment for non-ozone action days. Turn off lights and equipment to reduce power load when vehicles are not in use.

E. Eliminate the use of oil based paints requiring hydrocarbon based solvents on all action days.

16.12 PROSECUTION AND PROGRESS

16.12.1 Time and Order of CompletionIt is the meaning and intent of this contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute the Work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction: provided, however, that the order and the time of prosecution shall be such that the Work shall be completed in full, in accordance with this contract, the plans and specifications, and within the time of completion designated in the Standard Form of Agreement,; provided, also, that when the CITY and/or OWNER is having other work done, either by contract or by their own forces, the CITY and/or OWNER may direct the time and manner of constructing the Work done under

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this contract, so that conflict will be avoided and the construction of the various works being done for the CITY and/or OWNER shall be harmonized.

Upon request, the CONTRACTOR must, within seven (7) calendar days thereafter, submit a proposed sequence of construction to the Project Designer for review and approval. The CONTRACTOR shall also submit, upon request, a construction progress schedule which shall show the order in which the CONTRACTOR proposes to carry on the Work, with dates at which the CONTRACTOR will start the various parts of the Work, and estimated dates of completion of the various parts. During the course of the Work, the CONTRACTOR shall make updates to the construction progress schedule and shall submit the updates to the Project Designer upon request.

16.12.2 Computation of Contract Time for CompletionThe CONTRACTOR shall complete the Work in full within the number of working/calendar days, or by the mandatory completion date, stated in the Standard Form of Agreement. For the purpose of computation, working/calendar days will be considered as starting on the tenth (10 th) day after the date of the written Notice to Proceed and the date on the written Notice to Proceed should be considered Day 0.

16.12.3 Liquidated DamagesThe time set forth in the Standard Form of Agreement for the completion of the Work is an essential element of the contract. For each working/calendar day that any Work shall remain uncompleted after the expiration of the working/calendar days specified in the contract, together with any additional working/calendar days allowed, the amount per day given in the following schedule will be deducted from the money due, or to become due, the CONTRACTOR, not as a penalty, but as liquidated damages:

Amount of ContractTotal Awarded Construction Amount

Amount of Liquidated Damages to be deducted

per Working or Calendar DayLess than $ 50,000 $ 50

$ 50,00l to $ l00,000 $ 100

$ 100,001 to $ 500,000 $ 200

$ 500,001 to $ 1 million $ 400

$ 1,000,001 to $ 5 million $ 1,000

Over $ 5,000,000 (5 million) 0.02%

16.12.4 Extension of TimeShould the CONTRACTOR be delayed in the completion of the Work by any act or neglect of the CITY, OWNER or Project Designer, or any employee of either, or by other contractors employed by the CITY or OWNER, or by changes ordered in the Work, or by strikes, lockouts, fires, and unusual delays by common carriers, or unavoidable cause or causes beyond the CONTRACTOR’S control, or by any cause which the Project Designer shall decide justifies the delay, then an extension of time shall be allowed for completing the Work, sufficient to compensate for the delay, the amount of the extension to be determined by the Project Designer,

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provided, however, that the CONTRACTOR shall give the Project Designer prompt notice in writing of the cause of such delay.

16.12.5 Inclement Weather"Unusual Inclement Weather" is defined as a rain event beyond that which is defined as “normal rainfall” or other weather related event which occurs at the site and is of sufficient magnitude to prevent the CONTRACTOR from performing units of Work critical to maintaining the progress schedule.

Under a calendar day contract, the CONTRACTOR may be granted an extension of time because of unusual inclement weather, including but not limited to unusual rainfall events, which are beyond the normal rainfall recorded and expected for Tyler, Texas. However, the CONTRACTOR will not be granted an extension of time for “normal rainfall”, as described below.

“Normal rainfall” compiled by the National Climatic Data Center for Tyler, Texas is considered a part of the calendar day contract, and is not a justification for an extension of time. Listed below are the number of days in each month for which no compensatory days for rainfall events (“Rain Days”) in such months may be claimed:

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Month No. DaysJanuary 3February 4March 4April 5May 4June 4July 4

August 2September 3

October 3November 4December 5

Rain days in addition to the baseline rain day determination described above will be measured with the Project Representative’s approval at the nearest operational public weather data collection facility to the site, including but not limited to the CITY’S early warning flood gauge system.

The CONTRACTOR may receive credit in any month for unusual inclement weather, and specifically for any rain days in that month which exceed the number of rain days allocated to that month, if a claim is made and the weather event meets the definition for unusual inclement weather, and as applicable, such claimed day is a day on which Work critical to maintaining the progress schedule is scheduled to be performed and is otherwise capable of being performed.

16.12.6 Hindrances and DelaysNo claims shall be made by the CONTRACTOR for damages resulting from hindrances or delays from any cause, except where the Work is stopped by order of the CITY and/or OWNER or either of their representatives during the progress of any portion of the Work embraced in this contract. In case said Work shall be stopped by the act of the CITY, OWNER or either of their representatives, then such expense, in the judgment of the Project Designer, as caused by such stoppage of said Work shall be paid by the OWNER to the CONTRACTOR.

16.13 MEASUREMENT AND PAYMENT

16.13.1 Quantities and MeasurementsNo extra or custom measurements of any kind will be allowed, but the actual measured and/or computed length, area, solid contents, number and weight only shall be considered, unless otherwise specifically provided.

16.13.2 Estimated QuantitiesThis AGREEMENT, including the specifications, plans and Proposal is intended to show clearly all Work to be done and material to be furnished hereunder. Where the estimated quantities are shown for the various classes of Work to be done and material to be furnished under this contract, they are approximate and are to be used only as a basis for estimating the probable cost of the Work and for comparing the proposals offered for the Work. It is understood and agreed

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that the actual amount of Work to be done and material to be furnished under this contract may differ somewhat from these estimates, and that where the basis for payment under this contract is the unit price method, payment shall be for the actual amount of such Work done and the material furnished.

Where payment is based on the unit price method, the CONTRACTOR will make no claim for damages, anticipated profits or otherwise on account of any differences which may be found between the quantities of Work actually done, the material actually furnished under this contract and the estimated quantities contemplated and contained in the Proposal; provided, however, that in case the actual quantity of any major item should become as much as twenty percent (20%) more than, or twenty percent (20%) less than the estimated or contemplated quantity for such items, then either party to this AGREEMENT, upon demand, shall be entitled to a revised consideration upon the portion of the Work above or below twenty percent (20%) of the estimated quantity.

A "Major Item" shall be construed to be any individual bid item incurred in the Proposal that has a total cost equal to or greater than five percent (5%) of the total contract cost, computed on the basis of the Proposal quantities and the contract unit prices.

When “plan quantity” is indicated for a bid item, CONTRACTOR shall be paid the amount specified in the contract documents without any measurement.

Any revised consideration is to be determined by agreement between the parties, otherwise by the terms of this AGREEMENT, as provided in Section 16.14, "Extra Work and Claims".

16.13.3 Price of WorkIn consideration of the furnishing of all the necessary labor, equipment and material, and the completion of all Work by the CONTRACTOR, and on the completion of all Work and of the delivery of all material embraced in this contract in full conformity with the specifications and stipulations herein contained, the OWNER agrees to pay the CONTRACTOR the prices set forth in the Proposal hereto attached, which has been made a part of this contract. The CONTRACTOR hereby agrees to receive such prices in full for furnishing all material and all labor required for the aforesaid Work, also for all expenses incurred, and for well and truly performing the same and the whole thereof in the manner and according to this AGREEMENT.

Where alternate methods of payment are allowed, the method of payment shall be as shown in the Proposal.

16.13.4 ArrearsNo money shall be paid by the CITY, upon any claims, debt, demand, or account whatsoever, to any person, firm, or corporation who is in arrears to the City of Tyler for taxes; and the CITY shall be entitled to counterclaim and offset against any such debt, claim, demand, or account in the amount of taxes so in arrears, and no assignment or transfers of such debt, claim, demand, or account after the said taxes are due, shall affect the right of the CITY to do so offset the said taxes against the same.

16.13.5 Payments WithheldThe OWNER may, on account of subsequently discovered evidence, withhold or nullify the whole or part of any certificate to such extent as may be necessary to be protected from loss on

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account of:A. Defective Work not remedied.B. Claims filed or reasonable evidence indicating probable filing of claims.C. Failure of the CONTRACTOR to make payments properly to sub-contractors or for

material or labor.D. Damage to the OWNER, CITY or another contractor.E. Reasonable doubt that the Work can be completed for the unpaid balance of the contract

amount.F. Reasonable indication that the Work will not be completed within the contract time.G. Failure to submit a construction progress schedule or to submit updates to the

construction progress schedule upon request of the CITY.

When the above grounds are removed or the CONTRACTOR provides a Surety Bond satisfactory to the OWNER, which will protect the OWNER in the amount withheld, payment shall be made for amounts withheld because of them.

16.13.6 Partial PaymentsOn or before the tenth (10th) day of each month, the CONTRACTOR shall prepare and submit to the Project Designer for review and approval a statement showing as completely as practicable the total value of the Work done by the CONTRACTOR up to and including the last day of the preceding month; said statement shall also include the value of all sound materials delivered on the site of the Work that are to be fabricated into the Work.

The OWNER shall then pay the CONTRACTOR the total amount of the approved statement, less five percent (5%) or ten percent (10%) of the amount thereof, which five percent (5%) or ten percent (10%) shall be retained until final payment, and further less all previous payments and all further sums that may be retained by the OWNER under the terms of this AGREEMENT. If the contract amount is less than four-hundred thousand ($400,000), ten percent (10%) of the approved statement will be retained. If the contract amount is four-hundred thousand ($400,000) or greater, five percent (5%) of the approved statement will be retained. It is understood, however, that in case the whole Work be near to completion and some unexpected and unusual delay occurs due to no fault or neglect on the part of the CONTRACTOR, the OWNER may, upon written recommendation of the Project Designer, pay a reasonable and equitable portion of the retained percentage to the CONTRACTOR, or the CONTRACTOR at the OWNER’S option, may be relieved of the obligation to fully complete the Work and, thereupon, the CONTRACTOR shall receive payment of the balance due under the contract subject only to the conditions stated under Section 16.13.11, "Final Payment".

16.13.7 Records of Materials PurchasedOn or before the tenth (10th) day of each month, the CONTRACTOR shall furnish to the Project Designer, one copy of all invoices for materials furnished to be incorporated into the Work, plus a statement of all materials previously included on monthly estimates and incorporated into the Work during the preceding month. This information is to be used to determine the value of materials on hand to be included in the monthly estimate for periodic payments.

If the CONTRACTOR fails to furnish this information, no materials shall be included on the monthly estimates until they are permanently incorporated into the Work.

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16.13.8 Use of Completed PortionsThe CITY shall have the right to take possession of and use any completed or partially completed portions of the Work, notwithstanding the time for completing the entire Work or such portions may not have expired, but such taking possession and use shall not be deemed an acceptance of any Work not completed in accordance with the contract documents. If such prior use increases the cost of or delays the Work, the CONTRACTOR shall be entitled to such extra compensation, or extension of time, or both, as the Project Designer may determine.

16.13.9 Substantial CompletionThe CONTRACTOR shall notify the Project Representative when, in the CONTRACTOR'S opinion, the Work is substantially complete and when so notifying the Project Representative, the CONTRACTOR shall furnish to the Project Representative in writing a detailed list of unfinished Work. The Project Representative will review the CONTRACTOR’S list of unfinished Work and will add thereto such items as the CONTRACTOR has failed to include. The "substantial completion" of the structure or facility shall not excuse the CONTRACTOR from performing all of the Work undertaken, whether of a minor or major nature, and thereby completing the structure or facility in accordance with the contract documents.

16.13.10 Final Completion and AcceptanceWhen all Work has been completed on this contract:A. The CONTRACTOR shall clean and remove from the site of the Work, all surplus and

discarded material, temporary structures and debris of every kind. The CONTRACTOR shall leave the site of the Work in a neat and orderly condition equal to or better than that which originally existed.

B. The CONTRACTOR shall furnish to the Project Designer a notification stating that all Work has been completed in accordance with the plans and specifications.

C. Final inspection will be made. If the Work is found to be incomplete or defective, the CONTRACTOR shall take whatever measures as are necessary to complete such Work or remedy such deficiencies.

D. The CONTRACTOR shall pay all bills for materials and labor which were incurred in performance of this contract and shall file with the CITY a notarized Contractor’s Affidavit of Bills Paid and OWNER shall also file a notarized Owner’s Affidavit of Bills Paid. In the event the CONTRACTOR is unable to pay all bills before receiving final payment, the CONTRACTOR shall furnish to the CITY an affidavit that all bills are paid except those listed in the affidavit. The list of unpaid bills in the affidavit shall include the amount owed and what the bill is for. This affidavit shall further certify that the OWNER has the CONTRACTOR’S permission to make out separate checks jointly to the CONTRACTOR and the company or person to whom each bill is owed. The CONTRACTOR and OWNER shall also provide the CITY with applicable Waiver and Release forms (conditional/unconditional) covering all labor, services, equipment, or materials furnished to property covered under this Agreement or to persons with whom Contractor contracted with in the performance of this Agreement. A waiver and release given by a Contractor or Owner shall substantially comply with the applicable form described in Tex. Prop. Code § 53.284, subsections (d) - (e).

E. The CONTRACTOR shall provide consent of surety, if any, to final payment. If surety is not provided, the CONTRACTOR shall provide complete and legally effective releases or waivers (satisfactory to CITY) of all claims arising out of or filed in connection with the Work.

F. The CONTRACTOR shall furnish to the CITY a one (1) year maintenance bond for one

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hundred percent (100%) of the total contract, in favor of the CITY.

If the Work is found to be complete in accordance with the contract documents and the Owner's and Contractor's Affidavit of Bills Paid and applicable Waiver and Release forms have been filed with the CITY, written notice of final acceptance will be made by the CITY and final payment will be made in accordance with the terms of the contract documents.

16.13.11 Final PaymentUpon receipt of the notification of final acceptance, the Project Designer shall proceed to make final measurements and prepare a final statement of the value of all Work performed and materials furnished under the terms of the AGREEMENT and shall certify same to the OWNER. The OWNER shall pay to the CONTRACTOR the balance due the CONTRACTOR under the terms of this AGREEMENT, provided the CONTRACTOR has fully performed all contractual obligations under the terms of this contract; and said payment shall become due in any event upon said performance by the CONTRACTOR. Neither the written notice of final acceptance nor the final payment, nor any provision in the contract documents, shall relieve the CONTRACTOR of the obligation for fulfillment of any warranty which may be required.

16.14 EXTRA WORK AND CLAIMS

16.14.1 Changes and AlterationsThe CITY or OWNER may make such additions, deletions or revisions as they may see fit, in the line, grade, form, dimensions, plans or materials for the Work herein contemplated, or any part thereof, either before or after the beginning of the construction, without affecting the validity of this contract and the accompanying Statutory Performance and Maintenance Bond and Payment Bonds.

If such changes or alterations diminish the quantity of the Work to be done, they shall not constitute the basis for a claim for damages, or anticipated profits on the Work that may be dispensed with, except as provided for unit price items under Section 16.13, "Measurement and Payment." If the amount of Work is increased, and the Work can fairly be classified under the specifications, such increase shall be paid for according to the quantity actually done and at the unit price, if any, established for such Work under this contract, except as provided for unit price items under Section 16.13, "Measurement and Payment"; otherwise, such additional Work shall be paid for as provided under Section 16.14, "Extra Work and Claims". In case the OWNER shall make such changes or alterations as shall make useless any Work already done or material already furnished or used in said Work, then the OWNER shall recompense the CONTRACTOR for any material or labor so used, and for any actual loss occasioned by such change, due to actual expenses incurred in preparation for the Work as originally planned.

16.14.2 Change OrdersWithout invalidating this AGREEMENT, the CITY or OWNER may, at any time or from time to time, order additions, deletions or revisions to the Work; such changes will be authorized by change order to be prepared by the Project Designer for execution by the OWNER and the CONTRACTOR. The change order shall set forth the basis for any change in contract price, as hereinafter set forth for Extra Work, and any change in contract time which may result from the change.

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In the event the CONTRACTOR shall refuse to execute a change order which has been prepared by the Project Designer and executed by the OWNER, the Project Designer may in writing instruct the CONTRACTOR to proceed with the Work as set forth in the change order and the CONTRACTOR may make claim against the OWNER for Extra Work involved therein, as hereinafter provided.

16.14.3 Minor ChangesThe Project Representative may authorize minor changes in the Work not inconsistent with the overall intent of the contract documents and not involving an increase in contract price by field order. If the CONTRACTOR believes that any minor change or alteration authorized by the Project Representative involves Extra Work and entitles the CONTRACTOR to an increase in the contract price, the CONTRACTOR shall make written request to the Project Designer for a written change order.

In such case, the CONTRACTOR, by copy of the CONTRACTOR’S communication to the Project Designer or otherwise in writing, shall advise the OWNER and CITY of the CONTRACTOR’S request to the Project Designer for a written change order and that the Work involved may result in an increase in the contract price.

Any request by the CONTRACTOR for a change in contract price shall be made prior to beginning the Work covered by the proposed change.

16.14.4 Extra WorkIt is agreed that the basis of compensation to the CONTRACTOR for Work either added or deleted by a change order or for which a claim for Extra Work is made shall be determined by one or more of the following methods:

Method (A) - By agreed unit prices; orMethod (B) - By agreed lump sum; or Method (C) - If neither Method (A) nor Method (B) be agreed upon before the Extra Work is

commenced, then the CONTRACTOR shall be paid the "actual field cost" of the Work, plus fifteen percent (15%).

In the event said Extra Work be performed and paid for under Method (C), then the provisions of this paragraph shall apply and the "actual field cost" is hereby defined to include the cost to the CONTRACTOR of all workers, such as foreman, timekeepers, mechanics and laborers, and materials, supplies, trucks, rentals on machinery and equipment, for the time actually employed or used on such Extra Work, plus actual transportation charges necessarily incurred, together with all power, fuel, lubricants, water and similar operating expenses, also all necessary incidental expenses incurred directly on account of such Extra Work, including Social Security, payroll taxes and other benefits, and a rateable proportion of premiums on Performance and Maintenance Bond and Payment Bonds, Public Liability and Property Damage and Worker's Compensation, and all other insurance as may be required by any law or ordinance, or directed by the CITY, or by them agreed to. The Project Designer may direct the form in which accounts of the "actual field cost" shall be kept and the records of these accounts shall be made available to the Project Designer.

The Project Designer or OWNER may also specify in writing, before the Work commences, the

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method of doing the work and the type and kind of machinery and equipment to be used; otherwise these matters shall be determined by the CONTRACTOR. Unless otherwise agreed or specified, the prices for the use of machinery and equipment shall be determined by using one hundred percent (100%) of the latest schedule of Equipment Ownership Expense adopted by the Associated General Contractors of America. Where practicable the terms and prices for the use of machinery and equipment shall be incorporated in the written Extra Work order. The fifteen percent (15%) of the "actual field cost" to be paid the CONTRACTOR shall cover and compensate the CONTRACTOR for profit, overhead, general superintendence and field office expense, and all other elements of cost and expense not embraced within the "actual field cost" as herein defined, except where the CONTRACTOR’S camp or field office must be maintained primarily on account of such Extra Work; then the cost to maintain and operate the same shall be included in the "actual field cost".

No claim for Extra Work of any kind will be allowed unless ordered in writing by the Project Designer. In case any orders or instructions, either oral or written, appear to the CONTRACTOR to involve Extra Work for which the CONTRACTOR should receive compensation or an adjustment in the construction time, the CONTRACTOR shall make written request to the Project Designer for written order authorizing such Extra Work. Should a difference of opinion arise as to what does or does not constitute Extra Work, or as to the payment therefore, and the Project Designer insists upon its performance, the CONTRACTOR shall proceed with the Work after making written request for written order and shall keep an accurate account of the "actual field cost" thereof, as provided under Method (C).

16.14.5 Time of Filing ClaimsAll questions of dispute or adjustment presented by the CONTRACTOR shall be in writing and filed with the Project Designer within thirty (30) calendar days after the Project Designer has given any directions, order or instruction to which the CONTRACTOR desires to take exception. The Project Designer shall reply within thirty (30) calendar days to such written exceptions by the CONTRACTOR and render the final decision in writing. It is further agreed that final acceptance of the Work by the CITY and the acceptance by the CONTRACTOR of the final payment shall be a bar to any claims by either party, except where noted otherwise in the contract documents.

16.15 ABANDONMENT OF CONTRACT

16.15.1 Abandonment by ContractorAbsence of the CONTRACTOR from the project for more than fourteen (14) consecutive calendar days without written consent from the OWNER, or if the CONTRACTOR fails to perform the Work in accordance with the contract documents, including but not limited to, failure to supply sufficient skilled workmen or suitable materials or equipment or failure to adhere to the progress schedule, will constitute abandonment of the project. In case the CONTRACTOR should abandon and fail or refuse to resume work within ten (10) calendar days after written notification from the OWNER or CITY, or if the CONTRACTOR fails to comply with the orders of the Project Representative, when such orders are consistent with the contract documents, then, and in that case, where performance and payment bonds exist, the Sureties on these bonds shall be notified in writing and directed to complete the Work, and a copy of said notice shall be delivered to the CONTRACTOR.

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After receiving said notice of abandonment the CONTRACTOR shall not remove from the Work any machinery, equipment, tools, materials or supplies then on the job, but the same, together with any materials and equipment under contract for the Work, may be held for use on the Work by the OWNER or the Surety on the performance bond, or another CONTRACTOR in completion of the Work; and the CONTRACTOR shall not receive any rental or credit (except when used in connection with Extra Work, where credit shall be allowed as provided for under Section 16.14, “Extra Work and Claims”), it being understood that the use of such equipment and materials will ultimately reduce the cost to complete the Work and be reflected in the final settlement.

Where there is no performance bond provided or in case the Surety should fail to commence compliance with the notice for completion herein before provided for, within ten (10) calendar days after service of such notice, then the OWNER may provide for completion of the Work in either of the following elective manners:A. The OWNER may thereupon employ such force of men and use such machinery,

equipment, tools, materials and supplies as said OWNER may deem necessary to complete the Work and charge the expense of such labor, machinery, equipment, tools, materials and supplies to said CONTRACTOR, and expense so charged shall be deducted and paid by the OWNER out of such moneys as may be due, or that may thereafter at any time become due to the CONTRACTOR under and by virtue of this AGREEMENT. In case such expense is less than the sum which would have been payable under this contract, if the same had been completed by the CONTRACTOR, then said CONTRACTOR shall not receive the difference. In case such expense is greater than the sum which would have been payable under this contract, if the same had been completed by said CONTRACTOR, then the CONTRACTOR and/or the CONTRACTOR’S Surety shall pay the amount of such excess to the OWNER; or

B. The OWNER, under sealed bids, may let the contract for the completion of the Work under substantially the same terms and conditions which are provided in this contract. In case any increase in cost to the OWNER under the new contract as compared to what would have been the cost under this contract, such increase shall be charged to the CONTRACTOR and the Surety shall be and remain bound therefor. However, should the cost to complete any such new contract prove to be less than what would have been the cost to complete under this contract, the CONTRACTOR and/or the CONTRACTOR’S Surety shall not be credited therewith.

When the Work shall have been substantially completed the CONTRACTOR and the CONTRACTOR’S Surety shall be so notified and notifications of completion and final acceptance, as provided herein above, shall be issued. A complete itemized statement of the contract accounts, certified to by the Project Designer as being correct, shall then be prepared and delivered to the CONTRACTOR and the CONTRACTOR’S Surety, whereupon the CONTRACTOR and/or the CONTRACTOR’S Surety, shall pay the balance due as reflected by said statement, within fifteen (15) calendar days after the date of such notification of completion.

In the event the statement of accounts shows that the cost to complete the Work is less than that which would have been the cost to the OWNER had the Work been completed by the CONTRACTOR under the terms of this contract; or when the CONTRACTOR and/or the CONTRACTOR’S Surety shall pay the balance shown to be due by them to the OWNER, then all machinery, equipment, tools, materials or supplies left on the site of the Work shall be turned over to the CONTRACTOR and/or the CONTRACTOR’S Surety. Should the cost to complete

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the Work exceed the contract price, and the CONTRACTOR and/or the CONTRACTOR’S Surety fail to pay the amount due the OWNER within the time designated herein above, and there remains any machinery, equipment, tools, materials or supplies on the site of the Work, notice thereof, together with an itemized list of such equipment and materials, shall be mailed to the CONTRACTOR and the CONTRACTOR’S Surety at the respective addresses designated in this contract, provided, however, that actual written notice given in any manner will satisfy this condition. After mailing, or other giving of such notice, such property shall be held at the risk of the CONTRACTOR and the CONTRACTOR’S Surety subject only to the duty of the OWNER to exercise ordinary care to protect such property. After fifteen (15) calendar days from the date of said notice, the OWNER may sell such machinery, equipment, tools, materials or supplies and apply the net sum derived from such sale to the credit of the CONTRACTOR and the CONTRACTOR’S Surety. Such sale may be made at either public or private sale, with or without notice, as the OWNER may elect. The OWNER shall release any machinery, equipment, tools, materials, or supplies, which remain on the Work, and belong to persons other than the CONTRACTOR or the CONTRACTOR’S Surety, to their proper owners. The books on all operations provided herein shall be open to the CONTRACTOR and the CONTRACTOR’S Surety.

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SECTION 17 SPECIAL CONDITIONSSpecial Conditions of Agreement for Tyler Water Utilities (TWU) 3-Way Contracts


[Insert Special Conditions Here]

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SECTION 18 TECHNICAL AND/OR SPECIAL SPECIFICATIONS; PLANS AND OTHER DRAWINGS;

OTHER DOCUMENTS AS NEEDED


[Insert the Following Sections Here As Applicable]

Technical and/or Special SpecificationsPlans and Other DrawingsOther Documents as Needed

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Section 19 CERTIFICATE OF INTERESTED PARTIES(Form 1295)


[OWNER – Insert Insert Certificate of Interested Parties (Form 1295) Here][CONTRACTOR - Insert Certificate of Interested Parties (Form 1295) Here]

[CITY – Insert Acknowledged Certificate(s) of Interested Parties (Form 1295) Here]

In accordance with House Bill 1295, for certain contracts entered into on or after January 1, 2016, OWNERS and CONTRACTORS must submit a Certificate of Interested Parties form at the time the CONTRACTOR submits the signed contract to the CITY. This applies to the following contracts:

OWNERS must submit a Certificate of Interested Parties form if CITY participation in the project is greater than $25,000; or

OWNERS and CONTRACTORS must each submit a Certificate of Interested Parties form if the value of the contract is equal to or greater than $1,000,000 regardless of the level of CITY participation.

The Certificate of Interested Parties (Form 1295) must be filed electronically with the Texas Ethics Commission using the online filing application located at https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm.

First time users need to create an account to register and receive a password. Click on the “Log In” button and then click on “Form 1295 Filings”. In the next screen, click the link that says “Click here if you don’t have a user ID”. Enter the requested information, select the “User Type” of “Business Entity” and click on the “Create Account” button. An email will be sent to the email address you provided with a link to finish setting up your account. Follow the link provided in the email to complete the process of setting up your account. Enter all of the requested information and hit the “Save” button. A screen will appear with the information you have provided. Please verify this information and, if it is correct, click on “Accept”. If it is not correct, click on “Update” and make the needed corrections.

Once an account is established, OWNERS and/or CONTRACTORS must log in to create a new Certificate of Interested Parties (Form 1295). Hand-written copies are not acceptable. Go to https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm. Click the “Log In” button and then click on “Form 1295 Filings”. Enter your email address and password, select the “User Type” of “Business Entity” and click on the “Login” button. A screen with your user information will appear. If it is correct, click on “Accept”. Click on the “Manage My 1295 Forms” button and then “Start a New Certificate”. When the blank form comes up, enter the requested information into the appropriate boxes. Also enter the following information:

Who is the Contract With?: Select “Other Governmental Agency” Agency/Entity Name: Enter “City of Tyler”

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Contract ID Number: Enter the TWU Contract Number, located on the cover of the contract

Description of Goods and Services to be provided: Enter the Project Name, located on the cover of the contract

For the purpose of this requirement, the following definitions apply: Interested party means: (1) a person who has a controlling interest in a business entity

with whom a governmental entity or state agency contracts; or (2) a person who actively participates in facilitating a contract or negotiating the terms of a contract with a governmental entity or state agency, including a broker, intermediary, adviser, or attorney for the business entity.

Controlling interest means: (1) an ownership interest or participating interest in a business entity by virtue of units, percentage, shares, stock, or otherwise that exceeds 10 percent; (2) membership on the board of directors or other governing body of a business entity of which the board or other governing body is composed of not more than 10 members; or (3) service as an officer of a business entity that has four or fewer officers, or service as one of the four officers most highly compensated by a business entity that has more than four officers.

Intermediary means: a person who actively participates in the facilitation of the contract or negotiating the contract, including a broker, adviser, attorney, or representative of or agent for the business entity who:1) receives compensation from the business entity for the person’s participation;2) communicates directly with the governmental entity or state agency on behalf

of the business entity regarding the contract; and3) is not an employee of the business entity.

If there are no interested parties, check the box indicating that there are none and then hit the “Next” button. If there are interested parties, click the “Add More” button located under the “List of Interested Parties” section of the form. Enter the requested information about the interested party. Click the “Add More” button for each additional interested party. When all interested parties have been entered, hit the “Next” button.

At the next screen, check the box indicating that you affirm that the information provided is correct. Also, enter the requested information and then hit “Submit”. At the next screen, hit the “Print” button, then click “Open with Adobe Acrobat Reader” to create a pdf of the Certificate of Interested Parties (Form 1295). When the pdf opens, make sure to verify that all of the information is correct. You cannot change information in the form once it has been entered. If you find that information has been entered incorrectly, you will need to start a new form and re-enter all of the information.

If the form is correct, print out one (1) copy of the Certificate of Interested Parties (Form 1295) and sign and notarize it. Make as many additional photocopies as necessary and attach the original form in Section 19, “Certificate of Interested Parties” in one contract book and the photocopies in Section 19, “Certificate of Interested Parties” in the remaining contract books.

Upon receipt of the executed contracts from the OWNER and/or CONTRACTOR, the CITY will acknowledge the Certificate of Interested Parties (Form 1295) and file the acknowledged form with the original form in the CITY’S files.

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